text:
    O. L. WHITTENBURG v. STATE.
    No. A-7140.
    Opinion Filed March 15, 1930.
    (287 Pac. 1049.)

      Phillips, Boner & Phillips, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was with W. A. Kuhn jointly charged by information with the crime of burglary in the second degree, was tried separately and convicted and his punish,ment fixed at imprisonment in the state penitentiary for. a term of two years; from which judgment and sentence he has appealed to this court.

This is a companion case to Kuhn v. State, 46 Okla. Cr. 359, 287 Pac. 1086. As shown by the record, this case was called for trial on the 1st day of February, 1928. The state appeared by A. A. McReynolds, county attorney, and W. W. Gates, assistant county attorney; the defendant appeared in person and by his attorney, W. L. Boner. Both sides announced ready for trial, the jury was drawn, impaneled, and sworn, witnesses were called and sworn, and the following proceedings had:

“By the Court: Let the record show that the county attorney declined to prosecute this case, and the court appointed John Morris, special county attorney to represent the state; and the defendant’is present in court and has no attorney; the court appoints W. L. Boner.”

C. L. Shoemake, called as a witness for the state, testified, in substance, that he met the defendant in Gainesville, Tex., where the defendant was in jail; that he had a conversation with the defendant with reference to the burglarizing of the Raymond Harrison garage. “Defendant told me how he got in the Harrison garage; he told me they got three casings and one inner tube. I brought the defendant back from Gainesville to Durant.” There were three casings and an inner tube found in the car defendant and Kuhn were driving. Y. B. Ware also stated he saw Mr. Shoemake when he brought the defendant back from Gainesville; that the three casings and inner tube were returned to Mr. Harrison.

L. H. Green was then called as a witness by the state, and stated he was the court reporter, and that he reported the case wherein the state of Oklahoma was plaintiff and W. A. Kuhn was defendant.

Witness was then asked to read to the jury what the defendant in this case, Mr. Whittenburg, testified to in the case of State of Oklahoma v. W. A. Kuhn; to which the defendant objected on the ground that the defendant was called as a witness and was sworn and was under the order of the court, and the defendant offered to show at this time that under an agreement with the county attorney he was to be given immunity and be released from prosecution in this case, and that the testimony offered is incompetent, irrelevant, and immaterial, and cannot be charged against the defendant in this trial.

“By the Court: The county attorney is not authorized under the laws of this state to offer anybody immunity, and the testimony of Whittenburg in the Kuhn case was that he was not offered any immunity and that he made a voluntary statement. The motion will be denied.
“By Mr. Boner: Exceptions.
“By the Court: Did the defendant Whittenburg testify? A. He did.
“Q. Was he sworn? A. He was.
“Q. Did you take the questions and answers correctly? A. I did.
“Q. Are you able to read them correctly to the jury? A. Yes, sir.”

The court reporter then read from his shorthand notes the testimony of O. L. Whittenburg, who is the defendant in this case, given on behalf of the state in the trial of W. A. Kuhn.

Raymond Harrison was then called and testified as to his garage being burglarized and to what he missed; also as to the make of the casings that had been taken from the garage.

A. A. McReynolds was called on behalf of the defendant, and was asked and answered the following questions:
“Q. State your name? A. A. A. McReynolds.
“Q. Do you hold any official position in Bryan county at this time? A. County attorney of Bryan county; have been county attorney since February, 1927.
“Q. Have you conducted the prosecution in the case of State of Oklahoma against Wallace Kuhn and O. L. Whittenburg? A. I have against Mr. Kuhn.
“Q. Did against Mr. Whittenburg until this morning? A. Yes, sir.
“Q. Mr. Whittenburg made a statement to you relative to what happened at the time this charge was made?
“By Mr. Morris: Objected to.
“By the Court: Do you expect to prove by this wit-' ness directly in conflict with what this court has ruled. I am going to run this court, and if you are going to try to prove to the jury that he offered him clemency you are not going to get it in the record. If you want any clemency go to the Governor with it.
“By Mr. Boner: Exception.
“By the Court: You are not going to put it in the record and if you try it any more I will put you in jail.
“By Mr. Boner: We except to the remarks of the court.”

The defendant has assigned four errors alleged to have been committed by the trial court, but the only assignment that it is deemed necessary to consider is assignment 2 wherein it is alleged by the defendant:

“The court erred in refusing to allow competent testimony offered by the defendant and refused by the court, which error was then and there excepted to by this defendant, and which testimony was in part testimony given by Clarence Shoemake, a deputy sheriff of Bryan county, Oklahoma, to the effect that the officers at Gainesville, Texas, induced the defendant to make statements proven at this trial by offering him favors and special inducements; that said facts were also offered to be proven by A. A. McReynolds, county attornev of Bryan county, Oklahoma, to the effect that he had made promises and overtures to the defendant O. L. Whittenburg and thereby induced him to make the statements that were offered in evidence in chief by the state; to which errors of the court the defendant then and there excepted.”

The defendant insists that he should have been permitted to show by the county attorney that in the prosecution in the Kuhn case he had promised the defendant in this case immunity from prosecution if he would testify and tell the facts in the Kuhn case, even though the immunity promised the defendant had not been approved by the court, and the defendant insists that the county attorney is in charge of the prosecution of criminal cases, and under the law is entitled to consideration when the county attorney has made an agreement with the party charged with the crime, and that it is error for the court to afterwards convert that agreement into a means of presecuting the defendant charged.

The defendant insists that he should have been permitted to prove by the county attorney that he had made such an agreement with the defendant.

In Steudle v. State, 6 Okla. Cr. 738, 120 P. 1133, when the case was called for trial, the defendant filed a motion, and among other things stated that the defendant believed that said case had been properly dismissed, as the defendant had entered into an agreement with F. A. Snodgrass, then county attorney of Custer county, where the defendant was to pay into court the sum of $400 and costs in the cases, and serve thirty days’ sentence in the county jail of Custer county, all of xvhich conditions the defendant promptly carried out, and that in return for said fine and sentence the county attorney agreed that he would dismiss all the other cases pending against the defendant. The defendant offered to prove by oral testimony the facts alleged in his motion. The trial court, in passing on said motion, overruled the same, for the reason that there was nothing in the record to show that there was ever an agreement made, and refused the offer of the defendant to prove the allegations of the motion. In passing on the question, this court said:

“If this settlement was made in good faith by the county attorney with this accused, it was the duty of the court to see that the agreement was carried out. We have no way of determining whether or not the agreement was entered into. The court refused to permit proof.”

Further on the court said:

“It appears that the fine assessed against accused was paid, and the term of imprisonment served. The trial court should have heard the proof and determined the motion on its merits. The judgment is reversed, and, the cause remanded, with direction to the trial court to grant a new trial.”

. It is further insisted by the defendant that in passing upon the question of the admission of the testimony the court threatened to send his attorney to jail prejudiced his rights before the jury, and that he is entitled to a new trial.

In Smith v. State, 12 Okla. Cr. 513, 159 Pac. 941, 944, this court said:

“No judge has a right to indicate to the jury, by word or action, his opinion of the merits of any case being tried before him, or to in any way indicate his opinion as to the credibility of any witness examined. Absolute fairness should characterize every word and action of a judge. Harrison v. State, 11 Okla. Cr. 14, 141 Pac. 236.”

The court further said:

“Besides, to reprimand counsel for a defendant, in the presence of a jury, is highly prejudicial. If counsel’s conduct is improper, the court must excuse the jury before administering a rebuke, or threatening to fine or imprison him for contempt.”

The Attorney General in his brief insists that the complaint of the defendant to the remarks of the court in ruling upon the question of the admissibility of the question as to what agreement the county attorney had with the defendant is closely related to the question of the admissibility of the testimony of the defendant in the trial of Kuhn; that the determining of that question will necessarily dispose of the question complained of here by the defendant. No authorities are cited by the Attorney General to justify the action of the court in refusing to admit the testimony of the county attorney or to justify the remarks of the court when he threatened to send counsel for the defendant to jail.

In Douglas v. State, 19 Okla. Cr. 257, 199 Pac. 927, 930, the court said:

“While it is the right of a trial judge to interrogate witnesses, when essential to the administration of justice, yet the practice of so doing, except when absolutely necessary, should be discouraged, and when it appears that there was an abuse of discretion by the trial court in interrogating different witnesses during the trial of the case, which was prejudicial to the substantial rights of the defendant, the judgment of conviction will be reversed.”

From a careful study of the record, there seems to have been no necessity for,the trial judge to threaten to send the attorney for the defendant to jail, if he tried to introduce the proof offered for the purpose of showing that an agreement had been made with the defendant on trial and the county attorney of Bryan county that, if the defendant would testify in the Kuhn case, he would give him immunity. We think the riprimand of the court when he threatened to send defendant’s counsel to jail was highly prejudicial to the rights of the defendant, and deprived him of that fair and impartial trial which is guaranteed to him under the Constitution and laws of this state.

The trial judge is as much a judge for the defendant as for the state, and is supposed to sit fairly and impartially on the rights between the state on the one hand and the defendant on the other. The action of the trial court when it threatened to send defendant’s counsel to jail at the time it refused to permit the defendant to introduce the testimony sought to be introduced may have had great influence on the jury in returning, the verdict it did, as jurors generally regard the presiding judge with great respect and give much weight to his expressions and opinions.

For the reasons herein stated, the case is reversed.

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


source: Caselaw Access Project

author: CHAPPELL, J.

license: Public Domain

text:
    C. H. MARTIN v. STATE.
    No. A-5588.
    Opinion Filed March 2, 1929.
    Rehearing Denied May 17, 1930.
    (287 Pac. 419.)

      Titus & Talbot and Charles Swindall, for plaintiff in error.
    L. A. Foster, S. B. Laune, J. T. McIntosh, James R. Tolbert, O. C. Wybrant, J. Wilford Hill, and M. B. Cope, for the State.
   CHAPPELL, J.

The indictment charges C. H. Martin, plaintiff in error, hereinafter called defendant, with receiving a deposit in the Central Exchange Bank, an insolvent bank at Woodward, Okla., knowing at the time that said bank was insolvent. The jury found him guilty and fixed his punishment at two years in the penitentiary and a fine of $5,000. From this judgment he appeals.

On the 15th day of January, 1923, one Nora B. Lupton deposited in said bank $32.14, the property of one A. F. Lupton, and numerous other persons made deposits in said bank on that day. On the night of January 15, 1923, the defendant disappeared and was absent from the city of Woodward for a period of ten weeks, his whereabouts being unknown during all that time. On the 16th day of January, 1923, J. E. Shellhart, who was vice president of the bank, called the state bank commissioner and caused the bank to be placed in the hands of such commissioner.' After an exhaustive examination of the books, records, notes, accounts, and cash of the bank, the bank commissioner found that its assets at the time of the closing were exceeded by its liabilities by more than $200,000, and the bank was and had been for several months prior hopelessly insolvent.

On the 7th day of January, 1924, the grand jury, impaneled in the district court of Woodward county, returned the indictment in this case against C. H. Martin, the defendant. The defendant demurred to such indictment, which demurrer was overruled by the court. Thereafter, on the Sth day of September, 1924, the defendant applied for a change of venue, which change was granted and said cause transferred to the district court of Alfalfa county and was assigned for trial in the district court of Alfalfa county at Cherokee on the 22d day of September, 1924. The case was called for trial on the 22d day of September, 1924, and thereafter said cause was reassigned for trial on the 3d day of October, 1924, at which time the trial was had. The defendant objected to being placed on trial until the next term of court, pleading section 2634, C. O. S. 1921, which provides that defendant be tried at the next term of court after change of venue had been granted. This objection was by the court overruled and defendant excepted.

This prosecution is based on section 4128, C. O. S. 1921: .

“No bank shall accept or receive on deposit, with or without interest, any money, bank bills or notes, or United States treasury notes, gold or silver certificates, or currency, or other notes, bills, checks or drafts, when such bank is insolvent; and any officer, director, cashier, man* ager, member, party, or managing party of any bank wlio shall knowingly violate the provisions of this section, or be accessory to or permit or connive at the receiving or accepting of any such deposit, shall be guilty of a felony, and upon conviction thereof shall be punished by a nne not exceeding five thousand dollars, or by imprisonment in the penitentiary not exceeding five years, or by both such fine and imprisonment.”

Under the provisions of this statute a bank must be insolvent, a deposit must be received, and the officers of the bank must know that the bank is insolvent at the time the deposit is received, and must receive or permit the receipt of such deposit. It appears from the evidence that the defendant, Martin, was the active officer in charge of the bank and had been for many years; that he hired the help, directed the work of all the employees, made the loans, and generally supervised the transaction of all business of the bank.

The evidence discloses that the defendant, Martin, did not personally receive the deposit, but that he was in and out of said bank during all of the 15th day of Jam uary, 1923, and must have known the bank was receiving deposits and transacting business in the usual manner except that it was failing to pay its cash letters and exchange items for that day.

The first error complained of by the defendant is that the court erred in overruling the objections and exceptions of the defendant to being, placed upon trial at a session of the March, 1924, term of said district court of Alfalfa county, for the reason said trial was not at the first term or next term of tbe district court of Alfalfa county, after the date the venue was changed from the district court of Woodward county to the district court of Alfalfa coum ty, as required by law, to which ruling of the court the defendant excepted at the time.

Section 2638, C. O. S. 1921, specifically provides:

“The court to which the action is removed must proceed to trial and judgment therein the same in all respects as if the action had been commenced in such court.”

Section 2634, C. O. S. 1921, provides:

“The cause must be docketed and stand for trial at the first term of court after the cause has been transferred.”

In Sledge v. State, 40 Okla. Cr. 421, 269 Pac. 385, this court held:

“That the words ‘first term of court’ mean the immediate term when the cause was transferred; otherwise stated, the words ‘first term’ mean the present term.”

The next error complained of is that the court erred in overruling motion to dismiss the cause on the ground of a variance between the allegations of the indictment and the proof. Section 1521, C. O. S. 1921, provides:

“All persons concerned in the commission of crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, are principals.”

In the case of White v. State, 36 Okla. Cr. 57, 252 Pac. 455, this court held:

“Where the active officers of an insolvent bank in charge of its affairs permit or direct its members or employees to receive deposits with knowledge of its insolvency, one exercising such authority cannot escape criminal responsibility by showing that he himself did not, manually, receive the deposit.”

In the instant case the allegation is that the deposit was received by O. H. Martin; the proof was that the deposit was received by Nell Costello, a cierk working under the immediate order and direction of the defendant. Under the rule laid down in the White Case, Martin was a principal even though he did not actually and personally receive the deposit, and the proof was sufficient to sustain the allegation of the indictment that Martin received the deposit.

The defendant next complains that the trial court committed error in refusing to give certain requested instructions. In the case of Jessie v. State, 28 Okla. Cr. 309, 230 Pac. 519, this court held:

“The trial judge is not compelled to delve into the realms of conjecture or speculation to instruct on some theory of the case not reasonably supported by the evidence. * * * Where the instructions given sufficiently cover the law, as contained in a requested instruction, it is not error to refuse such instruction although the same may correctly state the law.”

The theory of the defendant in this case was that Martin could not be guilty unless he, himself, actually received the deposit. The theory of the state was as indicated in the syllabus of this opinion. Under the law as laid down in the ease of White v. State, 36 Okla. Cr. 57, 252 Pac. 455, and Jessie v. State, 28 Okla. Cr. 309, 230 Pac. 519, the special instructions requested by the defendant were wholly inapplicable to the facts and law of the case, and giving of same was properly refused.

The defendant further complains that the court erred in giving to the jury instruction No. 1, because it placed the burden on the defendant to prove his innocence. Instruction No. 1 is as follows:

“You are instructed that the burden of proof in this case is upon the state to prove beyond a reasonable doubt each and every material allegation in the indictment contained, and if you find from the evidence that the state has proved each and every material allegation contained in the indictment, beyond a reasonable doubt, then it will be your duty to find the defendant guilty, but, if you find from the evidence that the state has not proved each and every material allegation contained in the indictment, beyond a reasonable doubt, then it will be your duty to find the defendant not guilty.”

This court has repeatedly held that instructions which place upon the defendant the burden of proof are fatal, but in this case under no method of reasoning can the language be so twisted as to shift the burden of proof from the state to the defendant. While the instruction is not skillfully drawn, yet it does make sufficiently plain the burden of the state to prove the guilt of the defendant beyond a reasonable doubt.

The defendant next complains that the court erred in giving the jury instruction No. 4. Instruction No. 4 merely quotes in full the language of section 4116, C. O. S. 1921, as follows:

“A banking corporation organized under the provisions of this chapter shall be permitted to receive money on deposit not to exceed ten times the amount of its paid-up capital and surplus, deposits of other banks not'included, and to pay interest thereon not to exceed the rate that may from time to time be fixed by the bank commissioner, as the maximum rate that may be paid upon deposits by banks in this state; to buy and sell exchange, gold, silver, coin, bullion, uncurrent money, bonds of the United States or this state, or of anv citv. county, school district or other municipal corporation thereof, and state, county, city, township, school district, or other municipal indebtedness; to lend money on chattel and personal security, or on real estate secured by first mortgages, running not longer than one year: Provided, that such real estate loans shall not exceed twenty per cent, of the aggregate loans of any such bank; to own a suitable building, furniture and fixtures, for the transaction of its business, the value of which shall not exceed one-third of the capital of such bank fully paid; Provided, further, that nothing-in this section shall prohibit such bank from holding and disposing of such real estate as it may acquire through the collection of debts due it; and Provided, further, that all banking institutions now organized as corporations doing business in this state are hereby permitted to continue said business as at present incorporated; but in all other respects their business, and the manner of conducting the same, and the operation of said bank, shall be carried on subject to the laws of this state, and in accordance therewith; and Provided, further, that no bank, except those that have complied with or that may be organized under the laws of this state relating to trust companies, sha’l engage in any business other than is authorized by this article. And whenever it shall appear from the reports made for the preceding year by such banking corporation that the total deposits are more than ten times the amount of its paid-up capital and surplus, deposits of other banks not included, the bank commissioner shall have power, and it shall be his duty, to require such bank within thirty days to increase its canital or surplus to conform to the provisions of this chapter, or cease to receive deposits.”

In the case of Welch v. State, 16 Okla. Cr. 513, 185 Pac. 119, this court says:

“An instruction embodying an abstract proposition of law should not be given, but the giving of same does not constitute reversible error, un’ess a miscarriage of justice or a denial of a defendant’s constitutional or statutory rights has resulted therefrom.”

In this case the instruction could not have been prejudicial to the defendant and the theory upon which the court gave the instruction seems to be that this section of the law would enlighten the jury on the authority of the bank to transact business.

In our view of the case the giving of the instruction was not necessary, but was harmless error.

. The defendant next complains that the court erred in giving instruction No. 6, which is as follows:

“The court further instructs the jury that in this case there are three distinct elements of the offense which must be proven beyond a reasonable doubt before you convict the defendant; first, that the deposit mentioned in the indictment was received by the Central Exchange Bank of Woodward, Oklahoma, was insolvent at the time said deposit was received, the said defendant knew the Central Exchange Bank was insolvent.”

This instruction is incomplete; there appears to be something left out of the case-made. On motion of the defendant this case was consolidated with No. A-6228, 46 Okla. Cr......., 287 Pac. 424, and the two cases were argued and submitted together, except that the 1st, 2d, 4th, 13th and 14th objections had no application to this case. The instruction as given in A-6228 is as follows:

“The court further instructs the jury that in this case there are three elements of the offense which must be proved beyond a reasonable doubt before you can convict the defendant: First: That the deposit mentioned in the indictment was received by the Central Exchange Bank of Woodward. Second : That the Central Exchange Bank of Woodward, Oklahoma, was insolvent at the time said deposit was received. Third: That at the time said deposit was received said defendant knew the Central Exchange Bank was insolvent.”

It is the contention of the state that the two instructions are identical, but that through clerical error the 6th instruction in this case, A-5588, is not complete. While tbe instruction as it appears in the record is informal and incomplete, yet there is sufficient in the instruction to advise the jury of the three elements to be proven in order to secure a conviction, and it is sufficient to present the three necessary elements of the crime charged.

The defendant next complains that the court’s instructions, taken as a whole, are inconsistent, contradictory, misleading, and confusing, and for said reasons are prejudicial to the substantial lights of the defendant. But the defendant fails to point out the erroneous, contradictory, misleading, and confusing instructions. If such instructions were given to the jury, it was the duty of the defendant to point out what instructions are inconsistent with some other instructions; what instruction is contradictory, misleading or confusing; in what respects are the instructions given to the jury inconsistent, contradictory, misleading and confusing. None of these things has the defendant seen fit to do. In McCarty v. State, 21 Okla. Cr. 365, 207 Pac. 1069, this court says:

“Where the instructions as a whole fairly cover the law of the case, ami are not misleading, although some instructions may be inartificially drawn, the general charge will be held sufficiently comprehensive.”

The defendant saved exception to each and all of the instructions given by the court. Owing to the technical nature of the case and the large amount of testimony offered, the instructions are lengthy. Some of them are erroneous in some particular, but the errors are not important. In West v. State, 13 Okla. Cr. 312, 164 Pac. 327, L. R. A. 1917E, 1129, this court says:

“Mere technical objections to the wording of the court’s instructions do not meet with the favor of this court. The judgment of conviction will not be reversed on the ground of misdirection of the jury unless in the opinion of this court, after the examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice or constitutes a substantial violation of a constitutional or statutory right of the defendant.”

We are of the opinion that, while there are errors and informalities in the instructions, they are not important. They fall under the harmless error statute (Comp. St. 1921, § 2822).

And, finally, the defendant complains that the court,. erred in admitting in evidence certain cash letters, not properly identified, and in admitting in evidence the liquidating report of the bank commissioner purporting to show the assets and liabilities of the bank without having been properly identified and verified. In this case, after the indictment was returned and before the date of trial, the books, records, and papers of the bank were taken from a private vault in the bank building by some interested person, and the state was unable to produce them. Proper proof was made of the loss of the books, records, and papers. The original cash letters were identified by the cashier of the Federal .Reserve Bank, which issued the letters, and the liquidating report of the bank commissioner, made by two of his deputies, was identified, and testimony was offered to show that the report contained a true and accurate statement of the affairs and accounts of the bank. In the case of Missouri, O. & G. R. Co. v. West, 50 Okla. 521, 151 Pac. 212, the Supreme Court of this state laid down this rule:

“The general rule admitting secondary evidence is that there must be a showing that the primary evidence is lost, or destroyed, or otherwise unavailable, through no fault of the party making the offer. * * *”

In the case of White v. State, 36 Okla. Cr. 57, 252 Pac. 455, the court says:

“Under the provisions of section 5115, Revised Laws 1910, the official reports and records of the State Examiner and Inspector, in so far as they pertain to the issues involved, may be introduced as primary evidence, subject to explanation or impeachment. Speculative surmises and strained deductions appearing in the report not warranted by the facts shown in the report, when called to the attention of the court, should be excluded.”

This court has frequently held that the party offering proof shall offer the best evidence of which the case in its? nature is susceptible, and the state did that in this case. Both the state and defendant were represented by able counsel. Every legal proposition was hotly contested; the record consists of three large volumes and contains more than 1,725 pages of evidence and record. It would not be surprising if error should creep into such a record, but after a careful examination of the whole record the court is of the opinion that no substantial error of law was committed.

This crime was committed on the 15th day of January, 1923, and more than six years have gone by since the commission of the crime and more than five years since the return of the indictment. The defendant was a man of business, social, and political power, and it has taken a long time to bring the case to a close. Cases of this kind show the crying need of a reform in the judicial procedure of the state to the end that accused may be put quickly to trial and acquitted if innocent and punished if guilty. Such delay in the administration of justice tends to create disregard for the law and defeat enforcement of the law.

An examination of the entire record shows that the defendant had a fair trial, that he is guilty of the offense charged, and that no substantial errors in the admission of evidence, or in the giving of instructions, were committed by the court. The case is therefore affirmed.

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


author: DAVENPORT, J.

text:
    BOB BATES v. STATE.
    No. A-7051.
    Opinion Filed Feb. 15, 1930.
    Rehearing Denied March 18, 1930.
    (285 Pac. 847.)
    Guy P. Horton, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted in the district court of Harmon county, on a charge of burglary in the second degree, and his punishment fixed at confinement in the state penitentiary for a term of two years. Motion for new trial was considered and overruled, and the defendant has appealed to this court.

The testimony on behalf of the state shows that on the 19th day of April, 1926, the Waller & Snider store, which was located in Louis, Harmon county, Okla., which was a mercantile partnership, was broken into and a considerable amount of property taken therefrom, and later on the home of the defendant, who was a resident of the state of Texas, a short distance from the Oklahoma line was searched by the officer, and a considerable amount of the property taken from the Waller & Snider store was found in his possession. The sheriff claimed to be operating under a search warrant issued by the court in the state of Texas. The warrant was not produced, and the court permitted the sheriff to testify as to what he found at the defendant’s home, in Hardeman county, Tex., across .the river from Louis, Okla.

The defendant did not testify, but one other witness shows that the hose and some other things found at his home were purchased by the defendant at another place. Mrs. Waller, the wife of one of the joint owners of the store at Louis, identified several articles that were kept in the store of Waller & Snider for sale.

Several errors are assigned by the defendant as ground for reversal of the case. The first assignment is that the court erred in overruling the motion of the plaintiff in error for a new trial. That the court erred in admitting certain incompetent and irrelevant testimony. Under the second assignment it is urged that the court erred in permitting the sheriff, E. T. Smith, to testify that he had a search warrant for the premises of the defendant, without the search warrant having been produced in evidence as the testimony discloses that the search warrant was issued in the state of Texas, and that Mrs. Waller was permitted to testify that some of the goods found in the defendant’s home were goods that had been taken from the store.

The defendant further insists that it was error for the court to permit testimony as to the fact that at the time they discovered the property taken from the store claimed to have been robbed the sheriff had a search Avarrant for the premises of the defendant. Upon an examination of the record Ave find that in the taking of the sheriff’s testimony, the following questions were propounded and the folloAving answers given:

“Q. Were you present at the time these goods you see here were recovered? A. Yes, sir.
“Q. Where were these goods recovered at? A. At the home of the defendant, Mr. Bates.
“Q. State the circumstances of the recovery, hoAV you come to discover them?
“Mr. Horton: We object to that as being immaterial. We have no objection to his testimony that he found the goods there, and these are the same goods and all.
“Q. Where did you find these goods? A. At the home of Mr. Bates.
“Q. Where at? A. At his house; part of them in the kitchen or dining room and part in the bed room and a. part in the adjoining room.”

It is the opinion of this court that when the defendant made no objection to the testimony of the sheriff as to where he found the goods and the identity of the goods, if there was any merit to his objection on the ground of the state not producing the search warrant, that he waived the same.

The defendant in his argument insists that the court erred in permitting, the witness Mrs. Waller to testify as to an invoice showing they had received from Swift & Co. salesman, certain articles alleged to have been taken from the store and found in the home of the defendant.

The testimony of Mrs. Waller, complained of by the defendant, as to the introduction of the invoice from Swift & Company was not admissible. Upon an examination, however, of the record, we hold that it was not prejudicial to the rights of the defendant, for the reason that the oral testimony of Mrs. Waller tends to show that, on the night the store was burglarized, articles of the kind found in the home of the defendant were in the stock at the store of Waller & Snider, therefore, we hold that the admission of the Swift & Comnay invoice as to the articles purchased was immaterial, and its admission did not in any way whatever prejudice the rights of the defendant.

There are other errors assigned by the defendant, but after a careful reading of the record it is the opinion of the court they are not sufficient to warrant a reversal of this case. The testimony is sufficient to sustain the judgment. The court’s instructions to the jury substantially stated the law. Rinding no errors in the record sufficient to reverse the case, the judgment is affirmed.

CHAPPELL, J., concurs. EDWARDS, P. J., not participating.


text:
    HAYES KEESEE v. STATE.
    No. A-7136.
    Opinion Filed March 18, 1930.
    (287 Pac. 813.)
    W. A. Bishop, for plaintiff in error.
    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 Seminole county of the crime of manslaughter in the first degree, and his punishment fixed by the court at imprisonment in the state penitentiary for a period of six years.

The evidence of the state shows that deceased was a brother-in-law Of defendant, and that they lived in the country on opposite sides of a quarter section of land; that early in the morning deceased went to the home of defendant looking for a horse and the wife of defendant informed deceased that defendant was in the field near the house; that later the deceased and defendant quarreled and had some difficulty. The wife of deceased and her daughter, who were near at the time of the difficulty, tried to separate defendant and deceased, and the wife of deceased took her husband and started home with him. Deceased had shot himself in the right hand with a shotgun some time prior to the homicide, so that he could not use the hand. Prior to the killing deceased and defendant had thrown rocks at each other and during the time of this rock throwing deceased was going toward his home ánd defendant was following him; that at this time and while going in the direction of deceased’s home defendant struck deceased with a rock. The wife of deceased tried to get defendant to go back, but defendant told her to leave him alone. Thereupon deceased and defendant got together again and defendant knocked the deceased down and killed him. There is no denial that the deceased came to his death by a blow struck by defendant, but defendant claims that the blow ivas struck in his own rightful self-defense.

The defendant contends, first, that the judgment of conviction was ' xe’ sole;v on the perjured testimony of the state’s witness Sally Davis, the daughter of the deceased. Defendant had been tried at a previous term of court. It is not clear from the record whether the jury disagreed or whether the court declared a mistrial, but in any event the defendant was not convicted at this first trial. The witness Sally Davis had testified at the prior trial and was a witness for the state in the case at bar. Counsel for defendant cross-examined her as to what her testimony liad been at the previous trial for the purpose of contradicting her and establishing the fact that she was not telling the truth in her evidence in the case at bar. The defendant also called several witnesses to testify as to what the evidence of the witness Sally Davis had been in the previous trial, and finally in the motion for new trial the defendant alleged that the verdict was obtained upon the perjured testimony of the witness Sally Davis, and attached copies of affidavits to the motion, but such copies were not carried into the case-made. This court is therefore unable to ascertain what the witnesses who made the affidavits swore as to the evidence of the witness Sally Davis in the former trial. The court by proper instructions submitted the question of the credibility of the witnesses, and the weight to be given their testimony, to the jury, who found the issue thereon in favor of the state. On the motion for a new trial the trial court had not only seen the witnesses and heard their testimony, but had before it the affidavits attached to the motion for new trial, find was in a better position than this court to determine the question of the truthfulness of the evidence given by the witness, Sally Davis.

In the case of Johnson v. State, 22 Okla. Cr. 382, 211 Pac. 425, this court said:

“The jury are the exclusive judges of the credibility of witnesses and the weight to be given their testimony, and a verdict of conviction will not be reviewed on appeal on arguments directed to the credibility of witnesses or the weight to be given their testimony.”

This court has always held that, where there is competent evidence in the record sufficient to support the verdict of the jury, even though the evidence be contradictory, this court will not reverse a case on the ground of the insufficiency of the evidence. The credibility of the witnesses and the weight to be given their testimony is entirely for the jury. Wilson v. State, 32 Okla. Cr. 139, 240 Pac. 155; Shields v. State, 32 Okla. Cr. 344, 240 Pac. 661; Choate v. State, 37 Okla. Cr. 314, 258 Pac. 360; Mayse v. State, 38 Okla. Cr. 144, 259 Pac. 277.

Defendant next contends that the court erred in making certain statements and asking certain questions which clearly indicated his attitude as to the credibility of the witness for the state, Sally Davis, whose testimony was claimed to be perjured. A plat of the premises where the homicide occurred had been introduced by the state and used both by the defendant and the state in the examina.tion of witnesses. This plat had not been prepared by the witness Sally Davis. Defendant’s counsel were cross-examining her upon directions, distances, and locations of objects as shown by the plat. The witness’ answers indicated that she was confused and did not understand the .plat. Defendant’s counsel asked the witness:

“Q. Look at the map and see, Sally; refresh your memory; don’t you know that your uncle Hays lived on the east and this is east right here?
“Mr. Billingsley: We object, incompetent, irrelevant and immaterial.
“The Court: Sustained. She said he lived eastward of where they lived. She don’t know which way is north or south on that map.
“Mr. Bishop:
“Q. Which way do you live from Hays Keesee? A. West.
“Q. To refresh your memory I will ask you where that water is, north of the road or south of the road? A. What?
“Q. Is this spring of water south of the road or north of it? A. It is east of our house and southeast of the road.
“Q. Now will you indicate here and tell the jury, Sally, where it is?
“The Court: It is evident to the court’s mind that she is' mixed up on that map and if she don’t understand it, it wouldn’t be fair to ask her to do that on the map.
“Mr. Bishop:
“Q. You say that when the defendant, Hays Keesee,, got down here near the creek that he turned off near this well of water? A. Yes, sir.
“Q. Can you tell the jury about how far that well of water is from the path? A. No, sir.
“Q. About how many feet? A. I—.
“The Court: Can you point out something? A., (Crying.)
“The Court: Don’t cry nobody is going to hurt you. Can you point out to the jury a object that is about as far off as the well is from the path?
“By Mr. Bishop:
“Q. Have you talked to Mr. Patterson about this case? A. No, sir.
“Q. Haven’t talked to anybody about it before? A. No, sir.
“The Court: Did you tell the jury the same story about' this this time as you did before? A. Yes, sir.”

No exceptions were saved to any of these questions or comments by the court, and no objection made to them at the time the case was being tried. It appears from the record that the witness was confused and probably scared, and the court was merely trying to reassure the witness and get the truth before the jury. There does not appear to be anything prejudicial in the questions or remarks of the court, nor is there anything, to indicate what the opinion of the court might- be as to the truthfulness of tlie testimony. Improper conduct will not be presumed on the part of the trial judge, and a case will not be reversed on that ground, unless such misconduct is affirmatively made to appear from the record. It is not every improper remark of a trial court that will justify a reversal of a criminal case. If the remarks are such as might reasonably influence the jury against a defendant, a new trial should be granted; but, if after a full consideration of the entire record, it is clear that the verdict is right, and that, even if the remarks had not been made, the jury could not reasonably have returned a different verdict, the judgment will be affirmed. Calloway v. State, 38 Okla. Cr. 418, 262 Pac. 696.

Finally it is contended that the verdict is contrary to the evidence and against the weight thereof and insufficient to sustain the judgment of conviction as rendered thereon. The defendant claims that, since the witness Sally Davis contradicted herself and was impeached by the testimony of other witnesses as to her testimony in the former trial, there is not sufficient evidence left in the record to support the verdict of the jury. The question of whether the witness Sally Davis should be believed was one for the jury and not for this court. The jury had a right to believe her, notwithstanding the fact that her evidence given in the trial of the case at bar might have been different to that given in the former trial, as they are the exclusive judges of the credibility of the witnesses and the weight to be given their testimony. There is, however, other competent evidence in the record sufficient to support the verdict of the jury. The mother of Sally Davis' testified to practically the same state of facts as did Sally, and other witnesses called by the state not only corroborated Sally Davis in the principal parts of her testimony, but furnished sufficient evidence to support the verdict of the jury, even if that had disregarded the evidence of Sally Davis.

A careful examination of the information, the evidence, and the instructions of the court discloses no error of sufficient importance to require a reversal of the case. For the reasons stated the cause is affirmed.

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


author: CHAPPELL, J. CHAPPELL, J.

text:
    C. H. MARTIN v. STATE.
    No. A-6228.
    Opinion Filed March 2, 1929.
    Rehearing Denied April 27, 1929.
    (287 Pac. 424.)

      M. M. Thomas and Clyde H. Wyand, (Nowlin, Spiel-man & Thomas, in reply brief) for plaintiff in error.
    James R. Tolbert, O. C. Wybrant, S. B. Laune, M. B. Cope, and J. T. McIntosh, for the State.
   CHAPPELL, J.

On June 26, 1925, an information was filed against C. H. Martin, plaintiff in error, hereinafter called defendant, in the district court of Woodward county, state of Oklahoma, charging the defendant, C. H. Martin, and J. E. Shellhart jointly with the offense of receiving a deposit in the Central Exchange Bank, an insolvent bank at Woodward, Okla., knowing at the time that said bank was insolvent.

Upon application of the defendant, a severance was granted and the defendant, C. H. Martin, was put upon trial, and by a verdict of the jury he was found guilty as charged and his punishment fixed at two years in the state penitentiary at McAlester:

On the 15th day of January, 1923, one R. L. Finney deposited in said bank $20, the property of Elston & Finney, a copartnership, and other persons made deposits in said bank on that day. On the night of January 15, 1923, the defendant disappeared and was absent from the city of Woodward for a period of ten weeks, his whereabouts being unknown during all that time. On the 16th day of January, 1923, J. E. Shellhart, who was vice president of the bank, called the state bank commissioner and caused the bank to be placed in the hands of such commissioner. After an exhaustive examination of the books, records, notes, accounts, and cash of the bank, the bank commissioner found that its assets at the time of the closing were exceeded by its liabilities by more than $200,000, and the bank was and had been for several months prior hopelessly insolvent.

The defendant demurred to the information, which demurrer was by the court overruled, and thereupon the defendant filed in said court a plea of former conviction, which plea of former conviction and former jeopardy was by the court overruled on the ground that the same was insufficient in law, to which ruling the defendant excepted. On the 19th day of September, 1925, this cause came on for trial, which resulted in the verdict of the jury as heretofore stated. The defendant had formerly been convicted in the district court of Alfalfa county, on change of venue from Woodward county, of the crime of receiving a deposit in an insolvent bank from one Nora B. Lupton knowing the said bank to be insolvent, which case is No. A-5588 (46 Okla. Cr. 388, 287 Pac. 419) in this court and upon conviction in the present case of receiving a deposit from R. L. Finney in an insolvent bank, knowing the same to be insolvent. His appeal in this case, on motion of defendant, was consolidated with case No. A-5588. The defendant briefed the two cases in one brief, discussing errors complained of separately as they applied to each of the two cases. The state briefed each case separately, and the' defendant, by attorneys, Nowlin, Spielman & Thomas, filed a supplemental brief in this case, adopting the arguments made by defendant’s counsel in A-5588 as part of their argument in this case.

In case No. A-5588 this court passed on 8 of the errors complained of in the syllabus and generally disposed of the balance of the errors complained of in No. A-5588. The defendant in his motion for new trial in this case sets out 45 separate errors, but the court only deems it necessary to pass upon 4 of the alleged errors, since the other questions have all been disposed of in No. A-5588.

The first error the court deems it necessary to consider in this case is the plea of former jeopardy. It will serve no good purpose to set out all of the plea, but that part pertinent to the issue in this case is as follows:

“Defendant further states that the evidence, facts and circumstances relied upon by the state of Oklahoma for a conviction in the case at bar are substantially the same as the evidence, facts and circumstances in the cause tried and upon which said defendant was convicted in the district court of Alfalfa county, state of Oklahoma, save and except that this defendant is charged in the case at bar with receiving a deposit from another person other than the one named in the indictment filed in case number 909, above mentioned, and that the date of the alleged offense is the same as the date alleged in the indictment upon which said defendant was convicted.”

In Case No. A-5588 this court uses the following language in the syllabus:

“Under section 1521, C. O. S. 1921, ‘All persons concerned in the commission of crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, are principals.’ (a) Where the active officers of an insolvent bank in charge of its affairs permits or directs its members or employees to receive deposits with knowledge of its insolvency, one exercising such authority cannot escape criminal responsibility by showing that he himself did not manually, receive the deposit, (b) Under section 4128, C. O. S. 1921, each deposit received in an insolvent bank, constitutes the offense of receiving a deposit in an insolvent bank, and the mere fact that several deposits are received on the same day does not make the receiving of them one offense.”

In the case of Morris v. Territory, 1 Okla. Cr. 617, 99 Pac. 760, this court says:

“(a) If a plea of former acquittal or former jeopardy shows upon its face a different offense from that for which the defendant is then on trial, or if it is otherwise fatal1 y defective, it should not be submitted to the jury, but should be stricken from the record of the court, (b) If, in the same affray, a person shoots and kills one person, and by a second shot kills another person, he may be separately prosecuted for killing each of them, and may be properly acquitted in one case and convicted in the other.”

The receiving of a deposit on the 15th day of January, 1923, from Nora B. Lupton, constituted a complete offense. The receiving of another deposit on the same day from R. L. Finney constituted another and separate offense. It is no answer to this argument to say that if the bank received 500 deposits on that day, that the defendant could be harassed, prosecuted, and punished for 500 separate offenses. The general rule is that the former prosecution or acquittal must have been upon a prosecution of the identical act or crime. To sustain the plea of former jeopordy, the offense must be identical in fact and law. The trial court committed no error in sustaining a demurrer to defendant’s plea of former jeopardy.

The defendant next complains that the court erred in permitting the state to exercise a sixth peremptory challenge to the jury. Pages 17, 18, and 19 of the case-made read as follows:

“Now, to wit: on September 19, 1925, at the hour of nine o’clock, a. m., of said day, said day being a day of a regular term of said court, the above cause comes regularly on for trial, the plaintiff, the state of Oklahoma, appearing by S. B. Laune, county attorney of Woodward county, Oklahoma, J. T. McIntosh, attorney for the State Banking Department, J. L. Tolbert and O. 0. Wybrant associate counsel, and the said defendant C. H. Martin, appearing in person and by M. M. Thomas and Clyde H. Wyand, his attorneys:
“Thereupon, the court clerk calls into the jury box twelve of the jurors heretofore impane1 ed for said term of court, and as they are called, they are by the clerk duly sworn to well and truly answer any and all questions that may be propounded to them touching their competency and qualifications to serve as jurors upon the trial of said cause, and the jurors so called having been thus duly sworn, they are examined on their voir dire as to their competency and qualifications to serve as jurors upon the trial of said cause, and as a juror is excused for cause or upon peremptory challenge, another juror is called, sworn and examined, and such examination is continued from day to day from said September 19, 1925, to September 23, 1925, at which time counsel for the state and defendant have exercised all of their challenges for cause and peremptory challenges:
“Thereupon, the twelve jurors remaining in the jury box are by the court clerk duly sworn to try the issues in said cause:
“Mr. Thomas: If the court please, I want to make a motion here in order to preserve the record, and out of the hearing of the jury:
“Motion by Mr. Thomas: Comes now the defendant C. H. Martin and moves the court to discharge this jury, for the reason that the same was not duly impaneled, examined and sworn according to law, for the following reason, to wit: That the court permitted the state of Oklahoma, after excusing the juror Fennimore, and after the state of Oklahoma and defendant had exercised their five peremptory challenges, to exercise a sixth peremptory challenge to the jury as a whole.
“The Court: Your motion to discharge jury is overruled.
“Mr. Thomas: To which ruling the defendant Martin excepts.”

In the case of Munson v. State, 13 Okla. Cr. 569, 165 Pac. 1162, this court says:

“Alleged errors occurring during the trial must appear from, and be supported by, the record as certified by the trial judge. * * * Where the record does not support such, alleged errors, this court is without authority to decide questions of law involved.”

There being nothing in the case-made to support the contention of the defendant and it affirmatively appearing that proper procedure was had in the impaneling of the jury the error complained of cannot be considered by this court.

The defendant next complains that the court erred in permitting the court reporter, one Hugo, to read from the transcript of the evidence taken in the case of Martin v. State, being case No. A-5588 in this court, 46 Okla. Cr. 388, 287 Pac. 419, which evidence read, was certain voluntary admissions made by the defendant, Martin, in his former trial in No. A-5588, which the state claimed was pertinent to the issues in this case:

“In the absence of statutory regulation of the subject, testimony and written statements given voluntarily or made by a party or a witness in a judicial proceeding, are, as admissions, competent against him on the trial of any issue in a criminal case to which they are pertinent. Admissions made in the course of judicial proceedings are .substitutes for, and dispense with, the actual proof of facts.” 16 C. J. § 1248, p. 629.

This court has always held that admissions made by defendant which are against his interest and made without duress or promise of reward, are admissible against defendant in the trial of any case where the admissions would be pertinent to the issue. This court has always held that admissions made by defendant in a former trial may be used against him in a retrial of the same case, and we know of no good reason why this rule should not be broadened. to include admissions made against his interest in another judicial proceeding; as is said in Corpus Juris: “They are conclusive on the person making them at least for the purposes of the case in which they are made.” Since the admissions were pertinent to the issue in the case, it was not reversible error for the court to permit the reading of the same to the jury, although it was done in an irregular manner.

And, finally, the defendant complains that the court erred in singling out the defendant and giving a special instruction concerning his testimony. The instruction complained of is in the following language:

“The jury are instructed that under the laws of this state, a person accused of a crime has the right to be a witness on his own behalf, and in this case the defendant having been a witness and having testified in his own behalf, the jury have no right to disregard his testimony from mere caprice or on the ground alone that he is the defendant and is interested in the event of the suit, or that he stands charged with crime; but you are instructed that his testimony ought to be received and considered by the jury in connection with all the other evidence in the case and should be weighed and measured by the jury in the same manner as the testimony of other witnesses in the case”

Thereafter the court made the following statement to the jury:

“Gentlemen of the jury, the court, was under the impression at the time the instructions were prepared in this case that the defendant, G. H. Martin, had requested that instruction No. 18 be given. It is now disclosed that the defendant did not make such a request. The court now withdraws from your consideration, gentlemen of the jury, instruction No. 18, heretofore read in your presence and hearing and you are instructed by the court not to consider the same, and said instruction No. 18 is withdrawn from the said instructions and the instructions of the court, with the exception of said instruction No. 18, are submitted to the jury. Thereupon, the defendant G. H. Martin excepts to the order of the court in withdrawing from the consideration of the jury said instruction No. 18, and exceptions are by the court allowed. The defendant objects to the court withdrawing said instruction No. 18, which is overruled and exceptions are noted by the defendant.”

In the case of Munson v. State, 13 Okla. Cr. 569, 165 Pac. 1162, this court had under consideration the precise question involved in this case, which instruction had been given by the same judge that tried the present case, Judge James B. Cullison. In that case, in an opinion written by Matson, J., the court says in the syllabus:

“Where the court in a separate instruction specifically told the jury that it had £no right to disregard the testimony of the defendant from mere caprice or on the ground alone that he is the defendant and is interested in the event of the suit, or that he stands charged with crime, * * * but that his evidence should be weighed and measured in the same manner as the testimonv of other witnesses in the case.’ and in a subseouent instruction the court lavs down the general rule bv which the jury mav be guided in determining the credibility of witnesses and the weight to be given their testimony, held, that said separate instruction did not amount to an adverse or preiudicial comment upon the defendant’s interest in the residt of the action, nor was it a comment by the court on th° weight to be given defendant’s testimonv. The instructions, considered together, placed the defendant upon the same plane with the other witnesses.”

In the body of the opinion the court says:

“It is contended that this instruction is erroneous and preiudicial to the substantial rights of the defendant in that it singles out the defendant and calls the jurv’s attention to the fact that he is an interested witness in the case. It is true that this court has held in numerous cases that it is erroneous for the court to call the jury’s attention to the fact that the defendant is an interested witness, and that the jury may consider such fact in arriving at its verdict. The instructions condemned by this court, and held to be prejudicially erroneous, were much more drastic than the foregoing instruction given in this case. The instructions condemned were those in which the court specifically told the jury that it was its duty, in arriving at the verdict, to consider the fact that the defendant was an interested witness in his own behalf. The instruction given in this case was a precautionary one; the jury being epecially told that it had ‘no right to disregard his testimony from mere caprice or on the ground alone that he is the defendant and is interested in the event of the suit, or that he stands charged with crime, * * * but that his evidence should be weighed and measured in the same manner as the testimony of other witnesses in the case.’ While this instruction perhaps tended to single the defendant out, we cannot see wherein its effect was to prejudice his testimony.- It was intended by the court for his protection, to place him on the same footing with the other witnesses, and being a part of the law of the case the jury was bound so to receive it. But in such instruction the jury was cautioned and prohibited from disregarding the testimony of the defendant from mere caprice, or upon the ground alone that he was the defendant. In addition, the jury was told that it should consider the evidence of the defendant in the same manner and weigh it the same as it would that of any other witness. Certainly this was all the defendant was entitled to. The jury is entitled to consider the interest that any witness has in the result of the trial, and when the defendant is placed upon the same plane with any other witness who testifies, it is unreasonable to say that he was preiudiced just because the jury was told of that fact in a separate instruction.”

The court takes this occasion to admonish trial judges that the giving of the instruction complained of is unnecessary and it is better practice not to give it. In the present case the court gave the following general instruction :

“You are the sole judges of the credibility of the witnesses, of the weight of evidence, and of the facts. It is your right to determine from the appearance of the witnesses on the stand, their manner of testifying, their apparent candor or frankness or the lack thereof, intelligence, which of the witnesses are more worthy of credit and to give weight accordingly. In determining the weight to be given to the testimony of the witnesses you are authorized to consider their relationship to the parties, if any is shown, their interest, if any, in the result of the suit, their temper, feeling or bias, if any has been shown, their demeanor on the stand, their means of information and the reasonableness of the story told by them and to give weight accordingly.”

This instruction sufficiently advised the jury and rendered unnecessary the giving of the instruction complained of.

In the case of Munson v. State, Judge Matson says:

“This court is not allowed to reverse a judgment of conviction on account of the misdirection of the jury unless after an examination of the entire record it clearly appears that there has been a miscarriage of justice, or that the defendant has been deprived of some constitutional or statutory right.”

We are unable to see wherein the defendant was prejudiced by the giving of the instruction complained of since the record discloses the guilt of the defendant beyond a reasonable doubt.

The evidence reveals a condition of wanton crime and disregard of the rights of. the bank’s customers on the part of the defendant and his co-officers which would have justified the jury in assessing the full penalty of five years’ imprisonment and $5,000 fine; bnt this court is bound by the punishment as fixed by the jury and can only examine the record to determine whether the evidence is sufficient to support the verdict and if the legal rights of the defendant have been protected by the court. The evidence being amply sufficient to support the verdict, and the defendant having been given a fair trial, and no substantial errors of law appearing in the record, the cause is affirmed.

Titus & Talbot and Charles Swindall, for plaintiff in error.

L. A. Foster, B. B. Laune, J. T. McIntosh, James R. Tolbert, O. C. Wybrant,' J. Wilford Hill, and M. B. Cope, for the State.

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

On Petition for Rehearing.

CHAPPELL, J.

Defendant has filed petition for rehearing in this cause and assigns as error of the court: “The trial court committed reversible error in admitting in evidence the numerous cash letters of the Federal Reserve Bank, over the objections of the plaintiff in error.” Defendant then quotes from the original opinion in this case, “And, finally, the defendant complains that the court erred in admitting in evidence certain cash letters, not properly identified, and in admitting in evidence the liquidating report of the Bank Commissioner * * * without having been properly identified and verified,” and complains that the court did not discuss the admission in evidence of the cash letters.

The defendant relies on the case of Appelget v. State, 33 Okla. Cr. 125, 243 Pac. 251, to sustain defendant’s contention that the court erred in admitting, these cash letters. Mr. Justice Edwards, speaking for the court in that case, said:

“Record examined, and held, that documentary evidence not properly identified was admitted, that the right of cross-examination was unduly restricted, and that the court misdirected the jury in defining insolvent as used in the criminal law.”

It will he noted that in the Appelget Case the doucmentary evidence was not properly identified, the right of cross-examination was unduly restricted, and the court misdirected the jury in defining “insolvent” as used in the criminal law. In the case at bar none of these errors were committed by the trial court. The cash letters were not only identified by the witness Wonderlich, but some of them were identified by the cashier of the bank, who testified that the letters were received by the bank and not paid upon order of the defendant, for the reason that there was not sufficient cash in the bank to pay them. There was evidence then that the letters were returned to the Federal Reserve Bank at Oklahoma City, and were identified as the letters returned from the defendant’s bank. The defendant was given every opportunity of cross-examination, and the court did not misdirect the jury in defining “insolvent” as used in the criminal law.

The conditions surrounding the trial of the case at bar were all so vastly different to those in the Appelget Case. In the Appelget Case the books and records of the bank were in the possession of the bank examiner and were available to be used in the trial of the case. In the case at bar, after the indictment and before the trial, all the books and records of the bank mysteriously disappeared. It then became necessary in the trial of the case for the state to offer secondary evidence. The cash letters and the liquidation report of the bank commissioner were the best secondary evidence available. This court held they were sufficiently identified to entitle the state to offer them as secondary evidence, and this court properly held that they were admissible.

Defendant, in his brief supporting his petition for a rehearing, says:

“These cash letters were treated by the state and considered by the jury as being liabilities of the Central Exchange Bank, and as being evidence of unpaid demands upon the Central Exchange Bank. A cash letter is in no sense a liability of a bank. Every dollar evidenced by the cash letters has already been charged as a liability . of the bank in the ‘individual deposits’ listed as liabilities of the bank.”

Individual deposits are not all the liabilities that the bank has in a case of this kind. The bank may be indebted for money borrowed, and also indebted upon drafts, bills of exchange, and cashier’s checks issued by the bank and negotiated in the open market. In due course items of this kind would reach the Federal Reserve Bank and would be a liability of the bank. Whether a cash letter was a liability of the bank or not would depend upon the facts surrounding that particular cash letter. Since the books of the bank were not available, it was competent for the state by secondary evidence to establish the liability of the bank, and the court did not commit error in admitting the cash letters and liquidation report of the bank commissioner

This court carefully considered every question raised by the defendant at the time the original opinion was) handed down. No new questions being presented in the petition for rehearing, and no sufficient ground being established for the granting of a rehearing, the petition for rehearing is denied, and mandate ordered issued.

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


author: EDWARDS, P. J.

text:
    JAMES EDWARD FORREST v. STATE.
    No. A-7193.
    Opinion Filed March 18, 1930.
    (287 Pac. 1052.)
    Cham Jones, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Stephens county of rape in the first degree and his punishment fixed at death.

The record discloses that on August 2, 1928, Mrs. H. A. Evans, a white woman, was at her home about three miles north of Comanche with her three small children. The defendant, a negro, appeared at the place, broke in the door, and Mrs. Evans with one of the children in her arms fled out of the back door and attempted to go to her husband, who was working almost a mile away. The defendant, who was armed with a pistol, pursued and caught her and pointed the pistol at her and threatened to kill her. She screamed, but was unable to make any one hear. He forced her back into the house, and the children fled. He pressed the pistol against her temple and forced her to submit to outrage. Defendant was apprehended and Hon. Cham Jones, a leading member of the bar of that section of the state, was appointed to defend. The case came on for trial; defendant was arraigned, informed fully of his constitutional rights, and entered a plea of guilty. The court, before accepting the plea, asked his counsel if he had anything to say. His counsel informed the court that he had conferred with defendant, had advised him fully of his constitutional rights and the punishment fixed by law for the crime charged; that defendant had at all times advised him he was guilty as charged and would plead guilty. He stated further that he knew of nothing that he could do further, and stood ready to carry out any directions of the court in behalf of defendant if the court felt there was anything further that should be done to safeguard the rights of defendant. The court also' heard tne testimony of the victim of the crime. It disclosed a most brutal crime. Defendant stated to the court that her statement was true. The defendant at the time further informed the court that he was an escaped prisoner from the penitentiary in Texas, where he had been serving a sentence for rape.

Section 1837, Comp. St. 1921, defines rape in the first degree and section 1838, Comp. St. 1921, fixes the punishment at death or by imprisonment in the penitentiary not less than fifteen years.

As we view the record in this case, if any case of rape in the first degree warrants the death penalty it is this case. We perceive no mitigating circumstances. A defendant convicted of this dastardly crime under the circumstances shown has forfeited the right to live, and the sentence of death was properly assessed.

There is nothing in this case that would justify thisl court in interfering with the judgment and sentence. The judgment appealed from is therefore affirmed.

It is further ordered by this court that the warden of the penitentiary proceed to carry into execution the judgment of the district court of Stephens county, and May 23, 1930, is fixed as the date for executing the judgment pronounced.

DAVENPORT and CHAPPELL, JJ., concur.


author: PER CURIAM.

text:
    MONROE BROWN v. STATE.
    No. A-7205.
    Opinion Filed Oct. 26, 1929.
    Rehearing Denied March 22, 1930.
    (287 Pac. 848.)

    Bristow & Johnson and J. W. Osmond, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted in the county court of Caddo county for the unlawful possession of intoxicating liquor, and was sentenced to pay a fine of $100 and to serve sixty days in the county jail.

The case was tried in August, 1928, and the appeal was lodged in this court in October, 1928. No briefs in support of the appeal have been filed. The evidence reasonably sustains the judgment. No material error is apparent.

The case is affirmed.


text:
    DAVE FENNELL v. STATE.
    No. A-7101.
    Opinion Filed March 22, 1930.
    (287 Pac. 1065.)
    Seymour Foose, for plaintiff in error.
    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 Blaine county of a second and subsequent violation of the liquor laws of the state of Oklahoma, and his punishment fixed at a fine of $50 and imprisonment in the state penitentiary for a period of one year.

The record discloses that the defendant had twice been convicted in the county court of Blaine county of the crime of the sale of intoxicating liquor, that judgment had been rendered upon such convictions, and that the defendant had paid the fines and served the time assessed as punishment, in the county jail of Blaine county.

The evidence of the state further shows that the sheriff procured a search warrant, and, assisted by some deputies, searched the premises of the defendant and found a container with one-half gallon of whisky and two other containers with about one and one-half pints in them, and also found a number of jugs and bottles which had contained whisky. The defendant, testifying, admitted that the whisky in question was found on his premises, but denied that it was his, and claimed that it had been put there by parties unknown to him.

The only question raised by the defendant is that the evidence is insufficient to support the verdict of the jury. Section 1, c. 123, Session Laws 1923-24, provides, among other things, as follows:

“The keeping in excess of one quart of any spirituous, vinous, fermented or malt liquors, or any imitation thereof, or substitute therefor; * * * or in any manner permitting any other person to have or keep any such liquors in or about his place of business or his residence, or any place of amusement, or recreation, or any public resort, or any club room, * * * shall be prima facie evidence of an intention to convey, sell, or otherwise dispose of such liquors; provided, further, that this section shall not be construed in any way to legalize the keeping of any liquors for unlawful purposes irrespective of the amount.”

This court has repeatedly held, in construing this statute, that the possession in excess of one quart of any of the liquors prohibited by said section makes a prima facie ease. Hargis v. State, 33 Okla. Cr. 283, 243 Pac. 986; Stites v. State, 44 Okla. Cr. 92, 279 Pac. 911.

This presumption is not conclusive, but máy be rebutted by the defendant. The question of the intent of the defendant is one of fact for the jury. It is their duty to weigh the evidence and pass upon the credibility of the witnesses and they are not bound to believe the defendant, although he may testify under oath that he did not own the liquor and knew nothing about it being'on his premises when found there by the officers.

The state having introduced competent evidence of former convictions to increase the grade of the crime and having shown by competent evidence the possession by the defendant of prohibited liquors in excess of one quart, the evidence was sufficient to support the verdict of the jury.

For the reasons stated, the cause is affirmed.

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


text:
    JOE JOHNSTON v. STATE.
    No. A-7047.
    Opinion Filed March 22, 1930.
    (287 Pac. 1068.)

      M. F. Hudson and Baseom Coker, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district conrt of McCurtain county of a second and subsequent violation of the prohibitory liquor law, and was sentenced to serve a term of two years in the penitentiary and to pay a fine of $100.

The information in substance alleges that defendant had the unlawful possession of a half gallon of whisky at a named date, and that prior thereto he had been charged in the county court of McCurtain county with the unlawfull possession of whisky, and had entered his plea of guilty, and judgment and sentence was entered thereon. This prosecution is based on the provisions of section 2299, Comp. Stat. 1921. Defendant, when arraigned, entered his plea of not guilty, a jury was impaneled, the state introduced its evidence and rested, and the defendant rested, offering no testimony. The state proved the prior conviction by introducing, the record of the county court and by testimony of the court clerk that defendant was the same person who had entered the plea of guilty in the prior case in the county court. The court then, among other things, instructed the jury as follows:

“* * * And in this connection you are instructed that the defendant, Joe Johnston, was heretofore and prior to this date, October 28, 1926, convicted of violating the prohibitory laws of this state, and if you find and believe from the evidence in this case beyond all reasonable doubt that the defendant, Joe Johnston, had in his possession, on his premises, on or about the 28th day of October, 1926, and subsequent to the 18th day of October, 1923, some amount of intoxicating liquor, to wit: whisky, with the intent and purpose on the part of him the said Joe Johnston to sell, barter or otherwise furnish the same to some other person in violation of the law of this state, then it will be your duty to convict the defendant of unlawful possession of intoxicating liquor.”

This instruction was excepted to and assigned as error in the motion for a new trial as invading the province of the jury.

Article 2, § 19, of the state Constitution, guarantees the right of a jury trial. Section 2690, Comp. Stat. 1921, provides:

“On the trial of an indictment or information, questions of law are to be decided by the court, and the questions of fact are to be decided by the jury. * * *”

The district court had jurisdiction of the charge only in the event that there had been a previous conviction of a violation of the liquor law. To give the court jurisdiction, it was necessary that the former conviction be definitely alleged and proven. It was one of the essential allegations, and it was as necessary to prove it as to prove the possession charged. Tucker v. State, 14 Okla. Cr. 54, 167 Pac. 637; Fowler v. State, 14 Okla. Cr. 316, 170 Pac. 917; Browder v. State, 15 Okla. Cr. 287, 176 Pac. 96; Wright v. State, 16 Okla. Cr. 458, 184 Pac. 158; Martin v. State, 30 Okla. Cr. 49, 234 Pac. 795; Rogers v. State, 34 Okla. Cr. 15, 244 Pac. 461; Bassett v.. State, 42 Okla. Cr. 126, 274 Pac. 893; State v. Davis, 68 W. Va. 142, 69 S. E. 639, 32 L. R. A. (N. S.) 501, Ann. Cas. 1912A, 996; State v. Bruno, 69 Utah, 444, 256 Pac. 109; State v. Dunn, 44 Idaho, 636, 258 Pac. 553; Massey v. U. S. (C. C. A.) 281 F. 293; 8 R. C. L. 276, § 293.

The plea of not guilty in a criminal case puts in issue every material allegation in an indictment or information. Section 2622, Comp. Stat. 1921; 16 C. J. p. 1346. When the defendant pleaded “not guilty,” he put in issue all material allegations of the information, including the fact of the alleged former conviction. To sustain a conviction in this case, the state must prove beyond a reasonable doubt the essential allegations of the information; that is, that defendant had possession of intoxicating liquor as alleged, and that prior thereto he had been convicted in the county court of McCurtain county as alleged. Defendant was not required to prove his innocence or to offer any testimony. He had the constitutional right to a trial by jury, and to have the charge against him submitted to the jury upon the question of his guilt of the offense for which he was on trial, which included the fact of a prior conviction and of his identity with the person so convicted. The court could not take judicial notice of the former conviction, and, although proven by the record and undisputed by defendant, could not invade the province of the jury and instruct them that this essential allegation of fact was true; that is, the court could not take any one of these essential facts from the jury and submit the others, and, when he attempted to do so, he in effect denied defendant a trial by jury.

It follows that the case must be reversed, and it is so ordered.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    GREELEY MOSELEY v. STATE.
    No. A-7476.
    Opinion Filed March 22, 1930.
    (287 Pac. 839.)
    James W. Smith, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Kiowa county of the crime of manslaughter in the first degree, and his punishment fixed by the court at imprisonment in the state penitentiary for a term of ten years.

The evidence of the state shows that the defendant shot Earnest Harrell with a shotgun, the wound producing death. The evidence of the defendant tended to establish self-defense. The defendant first complains that the court erred in putting the defendant upon trial upon an information charging murder without having a preliminary hearing. The record discloses that the county attorney filed a preliminary complaint in the justice court of C. W. Thompson charging the defendant with murder. The examining magistrate held the defendant to answer to the charge of manslaughter in the first degree and fixed his bond at $10,000. The record further discloses that the cause was remanded back to the examining magistrate by Hon. E. L. Mitchell, judge of the district court, for a hearing on the charge of murder, and that evidence was heard by the examining magistrate and he was held to appear in the district court to answer the charge of murder. The record does not support the contention of the defendant and raises no question for this court. Martin v. State 46 Okla. Cr. 411, 287 Pac. 424; Underwood v. State, 23 Okla. Cr. 119, 212 Pac. 1010; Leyerle v. State, 31 Okla. Cr. 179, 237 Pac. 871; Wise v. State, 46 Okla. Cr. 200, 284 Pac. 306.

The defendant next contends that the punishment is excessive and is contrary to an agreement he had with the county, attorney. When the case was called for trial, defendant in open court, and on advice of counsel, waived a jury and the cause was tried to Hon. E. L. Mitchell, judge of the district court sitting in Kiowa county. At the conclusion of the trial the court found the defendant guilty of manslaughter in the first degree and fixed his punishment at ten years in the state penitentiary. While it is true that the county attorney could make no agreement to reduce the grade of the crime or to fix the punishment thereof without the consent of the trial court, yet such agreement should be approved where the defendant acts on it in good faith and surrenders statutory or constitutional rights to expedite the hearing of the case, and es-pecially is that so where the agreement of the county attorney aids in the speedy administration of justice and the punishment agreed upon is adequate under all the circumstances surrounding the case. It is apparent from the record that the defendant and his counsel believed they had an understanding with the county attorney as to the punishment when they waived the jury and went to trial at once.

From an examination of the whole record, the court is of the opinion that justice will be done both to the state and to the defendant by reducing the punishment from ten years in the penitentiary to five years in the penitentiary. For the reasons stated, the punishment is modified to read five years in the state penitentiary at McAlester, and as modified is affirmed.

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