text:
    JOE YEARGAIN v. STATE.
    No. A-8835.
    June 5, 1935.
    (45 Pac. [2d] 1113.)

      W. M. Thomas, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

The plaintiff in error was tried and convicted for the crime of receiving stolen property upon an information charging him with having on the 1st day of February, 1934, unlawfully and feloniously received from Bob Marshall, for the consideration of f 5, “certain Rogers silverware, then and there knowing the same were stolen property.” The jury, by their verdict, fixed his punishment at five years’ imprisonment in the penitentiary, and a fine of |250.

A motion to set aside the verdict and for a new trial was made in the court below upon the whole case, which motion was overruled.

TO' reverse the judgment rendered on the verdict, he appeals.

The record shows, it appearing that the defendant was unable to' employ counsel, the court appointed Wm. M. Thomas to defend him.

Many errors are assigned. Those argued in the brief are: Errors of the court in denying the petition for a change of venue; in overruling the demurrer to the information; in admitting incompetent and prejudicial testimony; in giving and refusing certain instructions; and that the¡ court erred in refusing to direct an acquittal, for the reason that the witnesses Marshall and Phelps, who confessedly stole the silverware, were accomplices.

The evidence shows that, on or about the 1st of February, 1934, the defendant, Joe Yeargain, had a barbershop and pawnshop on South Main street, in the city of Miami. On his trial, two 19 year old boys, Bob Marshall and Rolla Phelps, appeared as witnesses for the state, testifying that on that date they went to defendant’s place of business and asked him if he would handle some silverware they intended to steal; that he told them he Avould try to handle it; that they then went to the Masonic Hall in the city and stole a number of pieces of silverware, and returned to- the defendant’s place with it; that the defendant examined the pieces and told them there was not enough, that they should get some more, and they returned to the Masonic Hall and took some more silverware and delivered it to the defendant; all told, according to their testimony, more than 100 pieces of table silverware; that the defendant gave them $5 for the silverware; that he kept the silverware a day or two> and. then made complaint to the boys about having it there in his shop, and told them to get it out. The witnesses further testified they then took the silverware away from the defendant’s place and pawned it to other parties who kneAV nothing of the defendant’s connection therewith, and the Masonic Lodge later recovered the silverware from other persons. It appears that mtnesses called to identify the same in the courtroom were unable to do so. There is no evidence in the record, save and except the testimony of witnesses Marshall and Phelps, tending to show that the defendant ever received the alleged stolen silverware, ever advanced any money on it, turned it back, or in any way tending to connect the defendant with the commission of the offense charged.

There was no testimony offered on the part of the defendant.

At the conclusion of the state’s case, the defendant moved for a directed verdict of acquittal on the ground that the evidence was insufficient to convict him of the offense charged, which motion was denied.

The court refused to give a series of instructions presented in behalf of the defendant, based upon the position that the evidence was insufficient to show the commission of the offense charged, and the insufficiency of the evidence to sustain a conviction, and the court refused to instruct the jury upon the law of accomplice testimony.

The information is based upon Penal Code, section 2265, St. 1931, which declares:

“Every person who buys or receives, in any manner, upon any consideration, any personal property of any value whatsoever, that has been stolen from any other, knowing the same to have been stolen, is punishable by imprisonment in the penitentiary not exceeding five years,' or in the county jail not exceeding six months, or by fine not exceeding two* hundred and fifty dollars, or by both such fine and imprisonment.”

There are no common-law crimes in Oklahoma, and our statute does not include in its definition of the crime anything limiting its application to receiving stolen property from any person, and there may be prosecution therefor irrespective of the conviction of the thief, or of the question whether he is amenable to 'justice.

The particular thing denounced by the statute is the receiving of stolen property knowingly, and the crime of receiving stolen property, knowing the same to have been stolen, is made a substantive offense and not merely an accessorial one.

It is not necessary to prove that the accused knew from whom the property was stolen, or who stole it, or the circumstances under which it was stolen. The essential elements of the crime consist in receiving’ property that had been stolen from any other person, knowing such property to' have been stolen, each of which must be proven beyond a reasonable doubt by competent evidence, and not alone on the uncorroborated testimony of accomplices. Our Penal Code, St. 1931, § 1808, 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.”

And section 3071, St. 1931, declares:

“A conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.”

The more generally prevailing view is that one by whom the goods in question were stolen is not an accomplice of a defendant on trial under a charge of receiving the stolen goods; but in some jurisdictions the thief is regarded as an accomplice of the receiver.

In this jurisdiction, the thief who steals property and the person who afterwards receives it from him, knowing it to’ have been stolen, are guilty of separate offenses, and unless more than this be shown, neither is an accomplice in the offense of the other. Pringle v. State, 32 Okla. Cr. 166, 239 Pac. 948; Buttry v. State, 18 Okla. Cr. 330, 194 Pac. 286; White v. State, 23 Okla. Cr. 198, 214 Pac. 202; Mayes v. State, 11 Okla. Cr. 61, 142 Pac. 1049.

The contention of the defendant is that the witnesses, Marshall and Phelps, were accomplices, that their testimony was uncorroborated, and that therefore the court erred in refusing to direct a verdict of acquittal.

Upon careful consideration of the record and briefs, we are of the opinion that the motion for a directed verdict should have been sustained.

When the question of an accomplice arises in the trial of a case, the general and accepted rule is for the court to' instruct the jury on the law of accomplice testimony, and leave the question as to whether or not the witness is an accomplice for the determination of the jury as a question of fact. But where the facts are not in dispute, or where the acts and conduct of the witness are admitted, it becomes a question of law for the court to say whether or not those acts and facts make the witness an accomplice. Where he is admitted to be such, or where the undisputed facts show him to be an accomplice, the court may so charge without invading the rule that the court should not comment on the credibility of any witness. Oudjoe v. State, 12 Okla. Cr. 246, 154 Pac. 500, L. R. A. 1916F, 1251.

Therefore, whenever upon appeal it is contended that the conviction was had upon the uncorroborated testimony . of an accomplice, it is equivalent to the declaration that the verdict is contrary to the law and the evidence, and this is always a legal question.

The term “accomplice” has been defined frequently by the courts, but the various definitions all convey the same idea, which is that an accomplice is one who, with criminal intent, is concerned with others in the commission of a crime, or, as it otherwise has been expressed, whether his participation in the offense was criminally corrupt. People v. Coffey, 161 Cal. 433, 119 Pac. 901, 39 L. R. A. (N. S.) 704.

In the case of Sipes v. State, 36 Okla. Cr. 1, 251 Pac. 511, it is said :

“The term ‘accomplice,’ as used in section 2701, C. S. 1921 [section 3071 St. 1931], providing that no person shall be convicted of a crime on the testimony of an ‘accomplice,’ without corroboration, is construed as meaning one culpably implicated in the commission of the crime of which the defendant is accused; in other words, an associate, one who knowingly and voluntarily co-operates, or aids or assists in the commission of the crime.”

In the case of Hewett v. State, 38 Okla. Cr. 105, 259 Pac. 144, it is said:

“An ‘accomplice’ is one culpably implicated in the commission of the crime of which the defendant is accused, or one who knowingly and voluntarily co-operates, aids, abets, or assists in the commission of such crime.”

In the case of Key v. State, 38 Okla. Cr. 169, 259 Pac. 659, 660, it is said:

“It is generally held that the person wlm steals property is not an accomplice of the one who receives the property knowing it to be stolen, that the larceny and the receiving are independent crimes. * * *
“The exception to this general rule is that, where the thief and the receiver of stolen property conspire together in a prearranged plan for one to steal and deliver the property to the other, and pursuant to such plan one does steal and deliver to the other, the receiver is an accomplice of the thief, and the thief is an accomplice of the receiver.” Logan v. State, 23 Okla. Cr. 316, 214 Pac. 944; Motsenbocker v. State, 29 Okla. Cr. 305, 233 Pac. 487; Brownell v. State, 33 Okla. Cr. 323, 244 Pac. 65.

In the case of White v State, 23 Okla. Cr. 198, 214 Pac. 202, 205, it is said:

“This conviction rests largely upon the testimony of two self-confessed thieves, the persons who claimed they stole the property and sold and delivered it to the defendant, which they claimed they did pursuant to- a previous agreement with the defendant. If this was done pursuant to- an agreement, these two witnesses were accomplices whose testimony should be corroborated. If there was no such previous understanding, the mere fact that these two witnesses stole the property and the -defendant received it, knowing it to be stolen, would not make the witnesses accomplices of the defendant. The stealing of property and the receiving of stolen property are two separate offenses, and the perpetrators of one offense are not necessarily accomplices of the perpetrator of the other. 1 R. C. L. 162, and cases cited.”

It is elementary that if the defendant alone was guilty of larceny, he could not be guilty of receiving the stolen property.

Some authorities, however, hold that one who assists others in the commission of a larceny may be convicted under some circumstances of receiving stolen property.

In the case of Logan v. State, 23 Okla. Cr. 316, 214 Pac. 944, 945, it is said:

“It has been held by this and other courts that an accessory to the theft of stolen property is not necessarily an accessory to the receiving of the stolen property, but this is not always true. In this case it is clear, if the evidence of Warriner is to be believed, that Warriner was an accessory with the defendant in both the theft and the unlawful receiving of this stolen tire. He was an accessory before the fact. The rule might be different if he were merely an accessory after the fact. If the state elects to stand upon the unsupported testimony of a self-confessed thief, it will be bound by his testimony as a whole. The state will not be permitted to adopt such parts as are favorable and expunge such parts as are unfavorable, so as to- make it appear that the witness was not an accomplice.”

The Attorney General, conceding that the conviction rests upon the uncorroborated testimony of the two self-confessed thieves, insists that the reasons given for the rule announced in the foregoing cases- are not sound, and in his brief states:

“In the case of Motsenbocker v. State, 29 Okla. Cr. 305, 233 Pac. 487, this court for the first time definitely announced the rule in subdivision (a) of the first syllabus that: ‘(a) But, where the thief and the receiver of the stolen property conspire together to steal the property, with a prearranged plan for the one who actually commits the theft to- deliver it to- the other at an agreed time and place, and the thief aids and abets the receiver in concealing the property, the thief is an accomplice of the other in the commission of the offense of receiving stolen property.’
“And that the true test is set out in the following subdivision: ‘(b) The test by which to- determine whether one is an accomplice of the other is to- ascertain whether or not he could be indicted for the offense for which the accused is on trial’.”

Now, we believe it stands to- reason that in order to make one a principal to- the crime of receiving stolen property (who was not the actual receiver thereof), such other person must have actually aided and abetted in the act of receiving. It must have been something, done more than the delivery of the stolen property to the receiver, or else larceny and receiving stolen property would not be separate and distinct crimes, but under our statutory distinction between “Principals” and “Accessories after the fact,” sections 1808 and 1809, Statutes 1931, the thief would be nothing more than an. accessory after the fact in receiving stolen property, and not a principal offender therein. We think the court should so state in this case, and revert to the holding announced in Mayes v. State, 11 Okla. Cr. 61, 142 Pac. 1049, and Buttry v. State, 18 Okla. Cr. 330, 194 Pac. 286.

This court, in determining the question of whether one person is an accomplice of another in the commission of a crime, has repeatedly applied the test set out in subdivision (b) of the syllabus in Motsenbocker v. State, supra, and if that test is applied to the evidence in this case, it will be apparent, we think, that neither Marshall nor Phelps could be successfully prosecuted as principals in the crime of receiving the property which they themselves stole. What they did was nothing more than to aid the offender, this defendant, after he had bought and received the stolen property from them, by taking it and concealing it. Under section 1809, supra, they would be accessories after the fact to the crime of receiving stolen property.

All we ask the court to do is to apply that test to the witnesses, Marshall and Phelps, in this, case, and we are satisfied the court will hold they are not accomplices of Yeargain.

After careful consideration, we are of the opinion that such insistence is neither good law nor sound reason.

If the testimony of the witnesses, Marshall and Phelps, is to be believed, there was a prearrangement by and between the defendant and said witnesses, and they conspired together, not only to' steal the property in question, but also to deliver it to the defendant. Then the defendant would be an accessory before the fact and an accessory after the fact, and said witnesses would be equally guilty of receiving the stolen property.

In the case of State v. Keithley, 83 Mont. 177, 271 Pac. 449, 451, the Supreme Court of Montana said:

“But where, as here, the thief and the receiver of the stolen property conspire together, in advance of the larceny, for one to steal and the other to receive, they are principals, and the thief is an accomplice-of the receiver, and vice versa.”

The same rule is sanctioned in the case of State v. Coroles, 74 Utah, 94, 277 Pac. 203, holding, that:

“In prosecution for receiving stolen property, where testimony of thief showed that defendant requested thief to steal property and deliver it to him, thief was an accomplice within Comp. Laws 1917, § 8992, requiring testimony of an accomplice to be corroborated by evidence tending to connect defendant with commission of offense.”

Mr. Justice Folland, speaking for the court, says:

“We have also stated the true reason for the enactment of the statute requiring corroboration of an accomplice in State v. Wade, 66 Utah, 267, 241 Pac. 838. In that case Mr. Justice Cherry, speaking for the court, said: ‘The rule of the statute that a conviction cannot be had upon the uncorroborated testimony of an accomplice is based upon the consideration that such testimony comes from a tainted source, and is not entitled to' the same credence as the evidence of a witness free from guilt. The essential characteristic of an accomplice is therefore criminal guilt.’
“In the same case, this court quotes with approval the rule stated in People v. Coffey, 161 Cal. 433, 119 Pac. 901, 39 L. R. A. (N. S.) 704, as follows: ‘This, then, is the true test and rule: If in any crime the participation of an individual has been criminally corrupt he is an accomplice. If it has not been criminally corrupt he is not an accomplice.’
“The New York Court of Appeals recently and for the first time passed upon this question. That state has a statute similar to ours in its definition of who are principals. The court held that the thief and receiver are accomplices. People v. Kupperschmidt, 237 N. Y. 463, 143 N. E. 256, 32 A. L. R. 447. Reasons which we think are sound are given for this decision as follows:
“ ‘The test is whether the alleged accomplice can be indicted for the offense. .Sometimes as in prosecutions for abortion, the coparticipant is regarded as the victim rather than the perpetrator of the crime (Dunn v. People, 29 N. Y. 523, 527, 86 Am. Dec. 319), or, as in the illegal sale of intoxicating liquors, it is said that the person making the sale is the only one declared by the law to be criminal (People v. Smith, 28 Hun, 626, affirmed in 92 N. Y. 665). But under the Penal Law, § 2, one who aids or abets another in the commission of a crime is a principal, whether he has been previously guilty of an independent crime or not. The receiver cannot take with guilty knowledge unless aided therein by the act of the thief in delivering.
“ ‘If the proper test is not whether the alleged accomplice is indictable for the same offense, but whether he has taken a guilty part in the commission of the crime (McLaughlin, J., in People v. Hyde, 156 App. Div. 618, 624, 141 N. Y. S. 1089), the same result is reached. Is the act of the thief in delivering the stolen goods to the receiver, under such circumstances as convey the knowledge that they were stolen, an innocent act? It is said that one cannot receive goods which he has himself stolen. Literally, but not in a legal sense, this may be true; but he is none the less “concerned in the commission of the crime” of receiving, and therefore a principal. Penal Law, § 2. We are dealing with the legislative definition of guilty participation, not with the common meaning of words.’ ”

In the case of People v. Coffey, supra, the Supreme Court of California held that:

“The test of whether one is an accomplice, within the rule as to accomplice’s testimony, is whether his participation in the offense has been criminally, corrupt.”'

Mr. Justice Henshaw, considering what acts or facts fix this relationship or characteristic upon a witness, uses .the following language:

“One is an accomplice in a crime because of the part that he has taken in it, not because he may be indicted as a principal. The latter is a mere accidental circumstance, depending upon the language of the statute, and in no way affecting the true touchstone, namely, the part which the accomplice has taken in the offense. The judicial declaration that, under a statute such as our section 31 of the Penal Code, all accomplices may be indicted as principals, is perfectly sound. But the attempted reasoning, from this that if a person cannot be indicted as a principal, he is, therefore, not an accomplice, is absolutely fallacious. * * *
“At common law the accomplice could not be indicted for the same crime, yet he was none the less an accomplice. The declaration that one is an accomplice if he can be indicted for the same crime charged against the defendant on trial is perfectly sound; but the converse of the declaration, namely, that, if he cannot be indicted for the same crime, he is not an accomplice, is the merest sophistry, which, ignoring the true test and meaning of the word, seeks to turn shadow into substance. That test and meaning, as we have said, are expressed in section 31 of the Penal Code. If a man has committed a crime, if he has aided and abetted in its commission, if he has advised or encouraged its commission, he is an accomplice with all other participes criminis.”

It follows from what has been said this case was tried and submitted to the jury upon an erroneous theory of the law, prejudicial to the substantial rights of the defendant.

And in the absence of some independent proof that the defendant ever came into' the possession of the alleged stolen silverware, we are of the opinion that the evidence was entirely insufficient to sustain the conviction.

Having reached this conclusion, we deem it unnecessary to discuss the other errors presented in the brief;

For the reasons stated, the judgment appealed from is reversed, and the cause remanded, with direction to' dismiss.

DAVENPORT, P. J., and EDWARDS, J., concurring.


source: Caselaw Access Project

author: DAVENPORT, P. J.

license: Public Domain

text:
    Ex parte DAVE A. TAYLOR.
    No. A-8899.
    June 7, 1935.
    (45 Pac. [2d] 1110.)
    Jno. V. Roberts, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Smith 0. Mat-son, Asst. Atty. Gen., for respondent.
   DAVENPORT, P. J.

This is an orginal proceeding in habeas corpus in which petitioner alleges he is unlawfully and illegally restrained of his liberty. The case has been submitted upon an agreed statement of facts, which omitting the caption and signatures is as follows:

“It is hereby stipulated and agreed that the petitioner Dave A. Taylor, was arrested upon a charge of transporting liquor in Garfield county, Oklahoma, on the 6th day of March, 1934, and on the 10th day of March 1934, entered his plea of guilty to said charge in the county court of Garfield county and was by said county court sentenced to serve fifty (50) days in the county jail of said county and to pay a fine of fifty dollars ($50.00) and the costs amounting to $27.77.
“That said defendant Dave A. Taylor was committed to said jail on said March 10th and served in said jail 55 days of his said sentence and on May 3rd, 1934, gave a stay bond staying the fine and costs and was on said date released. That at the expiration of the thirty day stay as provided in said stay bond, the said Dave A. Taylor appeared in said county court and requested additional time to pay the amount set forth- in the stay bond. That the county judge advised the defendant that in view of his family obligations he would not forfeit the bond or issue a bench warrant; that similar appearances by defendant were made from time to- time and the same advice and leniency given.
“That on the 2nd day of April, 1935, said court issued a bench warrant for the arrest and imprisonment of said Dave A. Taylor when the court learned that- the defendant was charged with another offense, which warrant was duly served and the said Dave A. Taylor is now held in the county jail of Garfield county, Oklahoma.
“That said Dave A. Taylor on the 4th day of August, 1934, paid on said fine the sum of Two dollars and that no more has been paid on said fine and costs.”

The sole question presented in this case by the petitioner and argued is, “Where a person convicted of a crime and sentenced to pay a fine and cost, and also imprisoned, after a legal commitment, and having served the imprisonment, gave a stay bond and stayed the fine for thirty days, as provided by statute, and at the expiration of the stay bond appears and submits himself for further orders, and the trial court indefinitely extends the time and conditions of the part of the sentence inflicting the fine and costs, can the trial court after the time would have expired by imprisonment at the rate of one day for each dollar of the fine and costs, issue a commitment for the person and require him to serve his sentence?”

This question has been before this court many times, and has been answered in the affirmative. Petitioner in his brief relies upon Ex parte Clendenning, 22 Okla. 108, 97 Pac. 650, 19 L. R. A. (N. S.) 1041, 132 Am. St. Rep. 628. The court has carefully read and studied the Clen-denning case and finds the facts in the Clendenning case are not the same or similar to the facts in this case.

In the Clendenning case this court said:

“When a judgment of imprisonment is imposed by a court on plea of guilty or conviction in a criminal case, and the same is not stayed as provided by law, the defendant should forthwith be committed to the proper officer for incarceration; and where this is not done, and the court makes an order under which the defendant is discharged from custody, it has no power or jurisdiction, after the lapse of the time involved in the sentence and after the term, to issue commitment on such judgment.”

The court has carefully examined the other authorities relied on by the petitioner, and has reached the conclusion they are not in point. In this case the defendant was convicted and served his jail sentence and gave a stay bond and stayed tbe payment of tbe fine and costs and was released from custody.

Section 3366, O. S. 1931, provides for giving a stay bond where tbe defendant was convicted of, or pleaded guilty to-, a misdemeanor.

Section 2998, C. O. S. 1921, now section 3367, O. S. 1931, in part reads as follows:

“If tbe defendant, on conviction, or plea of guilty to a misdeameanor, fails to pay or secure tbe fine and costs, as before provided, or if after staying it be shall fail to pay, be shall be committed until be shall have served out the amount thereof.”

In Ex parte Colbert, 52 Okla. Cr. 392, 5 Pac. (2d) 765, this court said that:

“If a defendant, on conviction of a misdemeanor, shall, after executing a bond to- stay tbe fine and costs, fail to pay, be shall be committed until be shall have served out tbe amount thereof.” Citing Ex parte Bailey, 50 Okla. Cr. 53, 296 Pac. 998.

Tbe agreed statement of facts brings petitioner within tbe terms of this statute. Tbe fact that tbe state may endeavor by civil suit to- recover tbe amount mentioned in tbe bond- is a, matter for which we have no concern.

Tbe writ is denied.

EDWARDS and DOYLE, JJ., concur.


author: EDWARDS, J.

text:
    GARRETT BAILEY v. STATE.
    No. A-8777.
    May 24, 1935.
    Rehearing Denied June 7, 1935.
    (47 Pac. [2d] 219.)

      Kight, Johnson & Kight, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   EDWARDS, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Rogers county of assault with a dangerous weapon and was sentenced to a term of two years in the state penitentiary.

At the time charged, defendant, with a woman companion and with one Pryor Couch, went from Tulsa to a rodeo on a farm near Claremore. They picked up an unidentified person on the way and took him with them. Considerable drinking, betting, and disorderly and boisterous conduct occurred there. A fist fight ensued in which complaining witness and defendant participated, and, as this subsided, defendant went to the car of his companion, took a shotgun from it, and fired three times, one or more shots taking effect and wounding Swimmer Baldridge. Defendant denies that he fired the shots, but claims they were fired by Pryor Couch while he was endeavoring to prevent him from shooting. The parties appear to have been more or less intoxicated. Some argument is made that the information is insufficient. Defendant filed a demurrer which was overruled, but he did not assign this as error in the motion for a new trial or the petition in error and thereby present the question to this court. Indulging all intendments and inferences, the information is sufficient.

Defendant next argues the evidence does not sustain the judgment. The rule is settled by many decisions of this court that where there is a conflict in the testimony or where different inferences may be drawn from it, its weight is for the jury and the judgment will not be interfered with unless there is no competent testimony to' support it or unless it appears to have been influenced by passion or prejudice. There is a conflict, but there is ample testimony to warrant the jury in finding defendant guilty.

It is further argued the court erred in his remarks to the jury when the verdict was delayed. His remarks expressed his wish that they should reach a verdict. They were improper, but we are of the opinion that they did not injure defendant. McClendon v. State, 19 Okla. Cr. 382, 200 Pac. 464; Montgomery v. State, 19 Okla. Cr. 224, 119 Pac. 222.

Other assignments of error are argued but none are of sufficient importance to require special discussion.

The case is affirmed.

DAVENPORT, P. J., and DOYLE, J., concur.


text:
    H. T. DOUGLAS v. STATE.
    No. A-8771.
    May 17, 1935.
    Rehearing Denied June 7, 1935.
    (47 Pac. [2d] 215.)

      Chapman & Chapman and Embry, Johnson, Crowe & Tolbert, for plaintiff in error.
    J. Berry King, Atty. Gen., and Scott A. Ferris, for the State.
   EDWARDS, J.

Plaintiff in error, hereinafter called defendant, on a change of venue from Pottawatomie county, was convicted in the district court of Lincoln county of larceny in borrowing money from a bank while active managing, officer thereof, and was sentenced to serve a term of 15 years in the state penitentiary.

The prosecution is under section 9187, Okla. St. 1931, which in substance provides that an active managing officer of a bank borrowing money, either directly or indirectly, from a bank with which he is connected, shall be deemed guilty of larceny of the amount borrowed. The information alleges that defendant was an active managing officer of the Canadian Valley Bank of Asher, a state bank; that he borrowed $2,500 from said bank by causing to be charged into its loans and discounts a note in said amount, and caused the proceeds therefrom to be transferred from said bank to' the Shawnee National Bank, where it was credited to the account of one P. Y. Jolly, and was then transferred to the account of defendant and one N. Douglas. In support of the charge, the state introduced evidence in substance that defendant was a director land the president of the Canadian Valley Bank, and largely controlled and directed its affairs. That he was a stockholder in numerous other banks and business concerns, including the Shawnee National Bank, of which he was a director, the president, and managing- officer. Also, with N. Douglas, a brother, he was owner of the Citizens’ Loan & Investment Company. That A. J. Shorney and P. Y. Jolly were employees of the Shawnee National Bank. That Shorney owed a note of $5,000 to a bank at Alto, Tex., which note was payable to defendant and N. Douglas, and was endorsed by defendant and was secured by certain shares of the Shawnee National Bank, which had been sold to Shorney by defendant. This note was past due, and the Texas bank was demanding payment, and it was necessary the note be protected. That Shorney had some outstanding obligations at the Canadian Valley Bank, and no more of his paper could be used there, so it was understood that defendant would raise the $5,000 necessary to clear the Shorney paper, and that $2,500 of the amount would be procured from the Canadian Valley Bank and the remainder at other banks. That a note was prepared, signed by Jolly and placed in the assets of the Canadian Valley Bank. That bank then placed to the credit of Jolly the sum of $2,500, which was at once transferred toi the Shawnee National Bank, and on the same day transferred to the account of defendant and N. Douglas. That, at the time Jolly executed the note, Shorney made an assignment to him of the stock held by the bank at Alto’, Tex., as security for his note. Defendant then sent the check of himself and N. Douglas to the Texas bank for the sum of $5,000 to pay the Shorney note. At the time they had no money in their account to meet the check, except as proceeds from the Jolly notes. That neither Shorney nor Jolly received any of the proceeds, from this note. Under the state of facts above set out, the state contends the transaction constitutes an indirect borrowing by defendant of $2,500 from the Canadian Valley Bank. That Jolly was a puppet, and the use of his name a mere convenience and subterfuge to circumvent the provisions of the statute.

Defendant first contends the information is insufficient to charge a public offense. That its averments are of lawful and innocent acts, and the elements of criminality attempted to be pleaded are mere conclusions of law. The information alleges an indirect borrowing as recited above. It is not a model, but it sufficiently alleges the essential facts with such particularity as to apprise defendant with what he is charged and to protect him from jeopardy from any other prosecution growing out of the same acts. That is all the law requires. Whitfield v. State, 37 Okla. Cr. 37, 256 Pac. 68.

It is not denied that defendant was an active managing officer of the Asher bank. Under the evidence as to the authority exercised by him in the management of the bank, he was an “active managing officer” within the meaning of section 9187, Okla. St. 1931. Witte v. State, 35 Okla. Cr. 204, 249 Pac. 968.

Defendant next argues the evidence does not show a borrowing by him, but shows he acted as an agent for the partnership of H. T. and N. Douglas; that the partnership was a legal entity, separate and distinct from defendant; that the statute should not be construed to' apply to a member of a partnership. This is interwoven with the further contention, that the evidence discloses a fatal variance between the proof and the charge, citing Heaton v. Schaeffer, 34 Okla. 631, 126 Pac. 797, 43 L. R. A. (N. S.) 540; Holmes v. Alexander, 52 Okla. 122, 152 Pac. 819, Ann. Cas. 1918D, 1134; Sharpe v. Wright, 88 Okla. 16, 211 Pac. 70; Bearman et al. v. Bracken et al., 112 Okla. 237, 240 Pac. 713; Hassen v. Rogers, 123 Okla. 265, 253 Pac. 72; Ernst v. State, 16 Okla. Cr. 507, 184 P. 793; Appelget et al. v. State, 33 Okla. Cr. 125, 243 Pac. 251; Kent v. Quicksilver Mining Co. et al., 78 N. Y. 159; Murphy v. Penniman, 105 Md. 452, 66 A. 282, 121 Am. St. Rep. 583; Farmers’ State Bank v. Youngers, 56 S. D. 7, 227 N. W. 371; Hinds v. State, 121 Neb. 508, 237 N. W. 617.

Touching the matter of variance, the argument is in substance that there was no borrowing in the legal sense from the Canadian Valley Bank; that the transaction was a discount of an item of commercial paper by Jolly, which was payable to himself; that by this discount transaction defendant did not become a debtor of the bank and was under no obligation to pay; that, if the transaction should be considered an indirect borrowing by the partnership composed of defendant and N. Douglas, the prosecution properly should be under section 9199, Okla. St. 1931, which defines a felony in the making of a loan or advance of the funds of a bank by any officer, employee, or agent to any person, firm, company, or corporation with whom he is directly or indirectly associated in business, without the written authority or consent of all the board of directors.

Section 9199, Okla. St. 1931, is section 4184, C. O. S. 1921. It was enacted in 1913 (Sess. Laws, c. 22, § 18). Section 9187 was first enacted in 1907 (S. L. 1907-1908, c. 6, art. 1, § 14). By this act the borrowing by an active managing officer of a bank is larceny, but no special penalty is provided. The penalty was therefore fixed by the general larceny statute. In 1923 this section was amended and a special penalty was provided, fixing a minimum of 5 years and a maximum of 15 years’ imprisonment. Sess. Laws 1923, c. 137, § 1. Section 9187 applies only to an active managing officer of a bank. Section 9199 applies to all officers, employees, and agents, and does not not specifically mention an active managing officer. It may be that defendant might have been prosecuted under either of these statutes. They are pari materia. Both define a special larceny under the Banking Law. Section 1774, Okla. St. 1931, is in part as follows:

“An act or omission which is made punishable in different ways by different provisions of this code, or other penal statute, may be punished under either of such provisions. * * *”

In State v. Bunch, 23 Okla. Cr. 388, 214 Pac. 1093, in syllabus 2 it is held:

“As between specific statutes prescribing different penalties for any offense, the state may elect to try an offender under either statute.”

See, also, Binghman et al. v. State, 44 Okla. Cr. 258, 280 Pac. 636.

Defendant was the payee and owner of the Shorney note until it was discounted at the Texas bank. He was personally liable thereon by reason of his indorsement. This note was paid in part by the moneys procured from the Canadian Yalley Bank on the Jolly note. Defendant received the beneficial interest by being relieved of his personal liability. The fact that N. Douglas was associated with defendant as a partner would not materially alter the fact that under the proof the indirect borrowing was by defendant. The statute forbids an active managing officer of a bank borrowing directly or indirectly from a bank with which he is connected. This statute is broad enough to reach an active managing officer who creates or is a member of a partnership' and who borrows in the name and for the benefit of the partnership. In Sharpe v. Wright, supra, in syllabus 3 it is said:

“Where S., a director and cashier of a bank, formed a partnership with P., and such partnership engaged in the business of buying and selling horses, and S. loaned P. various sums of the bank’s money, and also loaned other parties funds of the bank with which to purchase horses from such partnership, and where the profits of such partnership were divided between S. and P., held, that S. was not entitled to retain said profits for himself, but they belonged to the bank, and he was bound to surrender the same to the bank.”

This court in Ernst v. State, supra, in the first syllabus held :

“E., at a time when he was cashier and managing officer of a bank existing under the laws of this state, entered into an agreement with H. for H. to borrow money from such bank for the joint use of E. and H. H. executed to such bank his note for the money borrowed, and E. executed to H. his note for one-half of the money so borrowed in H.’s name, and the money SO' borrowed was used for the joint benefit of E. and H. Held: (1) That section 270, Revised Laws 1910, prohibits only an active managing officer, or other officer of a state bank, from borrowing or loaning to an officer of such bank the funds of such bank, and does not apply to an intermediary used by an officer of such bank in obtaining such illegal loan from such bank. (2) That an intermediary used by an officer of a state bank in securing a loan prohibited by said section 270, Revised Laws, is not guilty of a criminal offense, and is not in law an accomplice of the officer illegally borrowing money in violation of said section. (3) That an officer of a bank, who through the agency and in the name of an intermediary is beneficially interested in money borrowed from a state bank in the name of such intermediary, is guilty of the offense denounced by said section 270.”

Complaint is also made that the court erred in refusing instructions requested by defendant and in giving certain instructions. In effect the requested instructions embody the contention that, if the jury find the borrowing was by the partnership and not by defendant individually, they should acquit. Complaint as to the instructions given is directed to the contention just discussed that the prosecution should be under section 9199, and that, since the instructions are applicable to section 9187, they are contrary to law, confusing, and misleading. We deem it unnecessary to set out the different requests and the instructions given. Under the view of the law we have taken, we are satisfied the instructions fairly cover the law of the case and are free from prejudicial error.,

Some other assignments of error are argued. They have not been overlooked, but have had the attention of the court, but they are not considered of sufficient importance to require special discussion. Under the entire record, we are of the opinion the punishment assessed is ex- eessive; that the judgment should be modified by reducing the term of imprisonment from 15 years to 8 years.

As modified, the case is affirmed.

DAVENPORT, P. J., and DOYLE, J., concur.


author: DOYLE, J.

text:
    J. H. COLBY v. STATE.
    No. A-8785.
    June 7, 1935.
    (46 Pac. [2d] 377.)
    Cook & Bingaman and Williams, Cowan & Benedum, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error was convicted in the district court of McClain county of receiving stolen property upon an information in substance charging that he did feloniously buy and receive from one Eoland Baker one “Chime Alarm Big Ben Westelox clock knowing said property had been stolen by the said Eoland Baker.” The jury by their verdict fixed his punishment at imprisonment in the county jail for a term of six months and a fine of $250. A motion for a new trial was overruled. To reverse the judgment rendered on the verdict, he appeals.

The errors assigned and argued are that the court erred in overruling plaintiff in error’s application for a change of venue and his supplemental application for a change of venue; that the court erred in overruling plaintiff in error’s motion to quash the jury panel; that the court erred m giving instruction No. á; that the evidence is insuffici sat to support the conviction; and alleged misconduct o', the county attorney in commenting on the fact that the defendant did not take the witness stand in his own behalf.

From the testimony, it appears that plaintiff in error is a practicing physician in the city of Purcell and has been practicing medicine there for more than thirty-five years last past, that some time'in June, 1932, he received from Eoland Baker a Big Ben Westelox clock. The testimony of Eoland Baker given at the preliminary examination was read into the record. His testimony in substance was that his age is thirty-one years, living for the past four or five years in Oklahoma City, addicted to the use of morphine at the time, passing through Purcell went to Dr. Colby’s office to get a shot of medicine, told Dr. Colby of the fact he was addicted to the use of morphine, that he was sick and needed a shot of medicine. He further testifies:

“Q. Did you let Dr. Colby have a black clock? A. I let him have one, I couldn’t identify it.
“Q. What kind of a looking clock was it? A. Looked something like that.
“Q. Where did you let him have that one? A. Up to his office.
“Q. Did you try to sell a similar clock to a fellow by the name of Fisk? A. I don’t remember.
“Q. Dutchman, little fellow lives out there by Doc’s house? A. I don’t remember.
“Q. How many clocks did you let Dr. Colby have? A. Just one black clock.
“Q. Where did that come from? Did you steal it? A. I got it down at Wayne.
“Q. Do you remember where you got it? A. Drug store, I don’t remember the name of it.
“Q. How much did you get for the clock? A. He gave me a shot of dope for it.
“Q. Gave you a shot of dope for the clock? Did he ask you where you got the clock? A. No, sir.
“Q. Did you tell him you didn’t have any money? A. No', I didn’t tell him that. I left the clock.”

He further testified that two or three days before he sold Dr. Colby two or three paint brushes for 25 cents.

The transcript of the testimony covers more than 500 pages, but the foregoing is in substance the material testimony in the case.

Upon a careful examination of the record, our conclusion is that the judgment in this case cannot be permitted to stand.

In the case of Weaver v. State, 30 Okla. Cr. 309, 235 Pac. 635, 636, it is said:

“The elements making np this offense axe: First, the receiving of any personal property of some value upon any consideration; second, that said property had been stolen; third, knowledge on the part of the one receiving that it had been stolen. These elements must be proven in order to warrant a conviction in any case, and where the sufficiency of the evidence to establish any one of these essentials is lacking, a conviction cannot be sustained. Proof of these different elements may be made as in any other criminal case. They may be made by direct and positive evidence, or they may be proven by circumstances. As any essential fact in a criminal case, they must be proven, of course, beyond a reasonable doubt. Guilty knowledge on the part of one accused of receiving stolen property is generally not capable of being proven by direct and positive evidence, but must depend on circumstances. What circumstances will be sufficient cannot be stated by any fixed rule, but there should be such circumstances as point conclusively to the guilt of an accused.”

In the instructions given by the court No. 4 is as follows:

“You are further instructed that if you find and believe from the evidence in this case beyond a reasonable doubt that at the time said clock was purchased by the said defendant that he knew that said clock had been stolen, or that he knew such facts as made him believe that said clock was stolen, and in determining whether he had such guilty knowledge you will take into consideration all the facts and circumstances which have been proven in evidence, and you will consider the time and manner of receiving said clock, the person from whom he received it, his conduct with it afterwards towards said property, and all other facts and circumstances, and if after such consideration you find beyond a reasonable doubt that the defendant knew that the clock was stolen at the time he received the same and that he received it under those circumstances, that is sufficient as to his knowledge of its being stolen, and if you find these facts beyond a reasonable doubt, and also find the other facts necessary to constitute the crime charged, beyond a reasonable donbt, then it will be your duty to find the defendant guilty and fix his punishment as hereinbefore defined.
“Objected to by defendant, overruled, exceptions allowed defendant.
“W. G. Long, District Judge.”

The underlying vice in the foregoing instruction is in the assumption that the defendant purchased and received from the self-confessed thief the property in question. It Clearly invades the province of the jury in that it assumes the testimony of the witness Baker to be true. Analyzing this instruction, the court states: “At the time said clock was purchased by said defendant,” and further states, “And you will consider the time and the manner of receiving said clock,” in the further statement, “That defendant knew then that the clock was stolen at the time he received the same and that he received it under those circumstances.”

The trial court is never warranted in giving an instruction which has the effect of determining controverted questions of fact. Moody v. State, 11 Okla. Cr. 471, 148 Pac. 1055.

The law requires the court, not only to abstain from positive expression as to the weight of the evidence, but to avoid even the appearance of an intimation as to the facts, and to so guard the language of its charge to the jury, which is the law of the case, that no inference, however remote or obscure, may be drawn by the jury as to the weight of the evidence. Monagham v. State, 10 Okla. Cr. 89, 134 Pac. 77, 46 L. R. A. (N. S.) 1149.

It follows from what has been said the giving of said instruction constitutes reversible error.

We deem it unnecessary to discuss the other questions presented in the briefs. For the reasons stated, the judgment of conviction is reversed and the case remanded

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


text:
    MRS. O. F. RIDENHOUR v. STATE.
    No. A-8827.
    June 7, 1935.
    (46 Pac. [2d] 379.)
    K. D. Mitchell, for plaintiff in error.
    Mac Q. Williamson, Atty, Gen., and Jess Pullen, Asst. A tty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, for convenience hereinafter referred to as the defendant, was convicted of maintaining a bawdy house, and sentenced to pay a fine of $100.

At the time of the alleged offense, the defendant was proprietress of a hotel at 24% West Grand avenue, in Oklahoma City, Okla.

H. McKim, testifying for the state, stated that he, in company with another officer by the name of Reed, went to tbe hotel of the defendant, on March 24, 1933, and upon information received went directly to room No. 11, and broke the glass out of the door and found a negro man and a white woman in bed together; they arrested them and took them down to defendant’s room, where she was in bed sick. The defendant stated she knew nothing about the conduct reported to her, and asked the woman, whom she claims was working as chambermaid for her, if what the officers stated was true, and the woman denied it. Both officers testify to finding them in bed together; the woman thinly clad. The officers also testify to' having taken other parties from the hotel some time previous to the 24th day of March, 1933. Without setting out the testimony at length, if believed by the jury, the state’s evidence is sufficient to sustain the conviction.

The defendant denied any knowledge of any immoral conduct going on around the hotel, and called witnesses who had been living at the hotel for some time, who stated they had not seen and did not know any immoral conduct was going on, and did not know of parties congregating there for the purpose of prostitution.

The defendant urges the court erred in not sustaining her demurrer to the evidence of the state, and insists that the testimony is insufficient to sustain a conviction. With this contention we cannot agree.

There is a direct conflict in the testimony. This court has repeatedly held that if there is a clear conflict in the evidence, or if it is such that different inferences can be properly drawn from it, this determination will not be interfered with unless it is clearly against the weight of the evidence, or appears to have been influenced by passion or prejudice. Luther v. State, 18 Okla. Cr. 664, 197 Pac. 533; Leslie v. State, 22 Okla. Cr. 111, 210 Pac. 297; Campbell v. State, 23 Okla. Cr. 250, 214 Pac. 738; Pickett v. State, 35 Okla. Cr. 60, 248 Pac. 352; Underwood v. State, 36 Okla. Cr. 21, 251 P. 507; Mayse v. State, 38 Okla. Cr. 144, 259 Pac. 277.

After a careful reading and study of the record, we are compelled to conclude that the defendant was accorded a fair and impartial trial; that the court properly instructed the jury as to the law applicable to the fact-s; and that there are no errors in the record warranting a reversal.

The judgment is affirmed.

EDWARDS and DOYLE, JJ., concur.


author: PER CURIAM.

text:
    J. P. CANNON v. STATE.
    No. A-8849.
    June 7, 1935.
    (46 Pac. [2d] 1117.)
    W. W. Pryor and Hugh M. Sandlin, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted of the crime of contempt of court and a fine of $50 imposed.

The transcript of the record in this case was filed in this court on the 12th day of December, 1934. No brief has been filed in support of the defendant’s assignment of errors.

A careful examination of the record fails to disclose any fundamental or prejudicial errors. The evidence is sufficient to support the verdict.

The case is therefore affirmed.


text:
    LOU WHEELER v. STATE.
    No. A-8817.
    June 14, 1935.
    (46 Pac. [2d] 1117.)
    King & Crawford, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Sp. Asst. Atty. Gen., for the State.
   PER CURIAM.

The death of plaintiff in error suggested, and proof filed showing that the plaintiff in error died on or about the 28th day of May, 1935.

It is ordered that the case against plaintiff in error be abated.


text:
    CHARLES DAVIS v. STATE.
    No. A-8833.
    June 7, 1935.
    (46 Pac. [2d] 1117.)
    J. H. Hill and Bruce B. Potter, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted of the crime of harboring a fugitive from justice and a person seeking to escape arrest for felonies committed within the state, and appeals.

The petition in error and case-made was filed in this court on November 10, 1934. No brief has been filed in support of defendant’s assignment of errors.

A careful examination of tbe record fails to disclose any fundamental or prejudicial errors. Tbe evidence is sufficient to support tbe verdict of the jury.

Tbe case is therefore affirmed.


author: DAYENPOBT, P. J.

text:
    M. R. GADDY v. STATE.
    No. A-8804.
    June 14, 1935.
    (46 Pac. [2d] 380.)
    B. N. Linville, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAYENPOBT, P. J.

Tbe plaintiff in error, for convenience hereinafter referred to as tbe defendant, was by information jointly charged with A. H. Bains of tbe crime of burglary, was tried separately, convicted of burglary in tbe second degree, and his punishment fixed at confinement in tbe state prison for a term of five years.

Tbe testimony on behalf of the state in substance shows the home of Edward L. Martin, located at 515 North Adam street, Elk City, Okla., on the 17th day of July, 1933, was burglarized and considerable property taken, consisting of clothing of Edward L. Martin, his wife’s and baby’s clothes, of the value of $250. The Martin family was away from home at the time of the burglary.

W. Wagnon, testifying for the state, said:

“I lived near the Martin home on the 17th day of July, 1933. On the morning of the 18th or 19th I noticed a screen off a window, and went over to the house and saw a. window had been raised. I then went around to the west side of the house and found a door open. I called Mr. Thompson, and went into the house and found coat hangers on the bed. A trunk had been opened and the tray set out of the trunk.”

Edward L. Martin stated that:

“After we had 'returned to our home, I was on the streets of Elk City and saw May Rains, a daughter of A. H. Rains, and another girl going down the street toward a dance hall, and noticed that each of them had on dresses belonging to my wife. The next morning after seeing the dresses on the girls, Bob Green and I went to the A. H. Rains store in Elk City, and found one man’s vest, and had a conversation with Mr. Gaddy, the defendant, about the dress we found on May Rains. Mr. Gaddy claimed he bought the stuff from other parties, I don’t remember the names. He showed us a record at that time claiming, to be a record of the items he had bought from some one who was a stranger. He said the dress May Rains had on the night we saw her had been bought by him from this party from whom he bought the other stuff.”

The entry of the articles claimed to have been bought by the defendant Gaddy was introduced in evidence, showing the purchase of three dresses, one light hat, and one pair of pants.

The testimony further shows that a number of the things taken from the Martin home was found under the building occupied by the secondhand store and living apartment of A. H. Rains, and on top of the building. The testimony further shows the defendant was occupying a part of the building for a sleeping room, and was interested with A. H. Rains in the secondhand stuff they bought and sold; this defendant making the repairs and sharing the profits when an article was sold.

The testimony of the witness Martin as to the property found by them at the secondhand store and building occupied by this defendant and A. H. Rains was objected to on the ground that it was unlawfully secured; the building-being searched without a search warrant.

The testimony further shows by Martin that he and a Mr. Thompson went to Altus, in Jackson county, several months after this house was burglarized, and went out to where the defendant Gaddy was picking cotton and placed him under arrest, then came back to where a truck was parked, which truck was owned by Rains. The officers claim that, after they had placed Gaddy under arrest, they searched the truck in the presence of the defendant Gaddy, opened up the truck cushions, and found three coats sewed up in the cushions, one black coat with brown fur collar, a little tan polo coat, and a little blue coat. The proof further shows that the property found in the cushion of the truck that had been driven by Gaddy out to where he was engaged in picking cotton was part of the things taken from the Martin home.

It is further shown that, after the state’s witnesses testified they went to the place of business of Gaddy and Rains, they found certain articles of clothing in their store that belonged to Martin, a search warrant was procured, and the place of business and residence searched and other articles found, some under the floor, and some on top of the building.

The officers testified that, before they searched the truck that belonged to Rains that had been driven out to the cotton field by Gaddy, they placed him under arrest, and then searched the truck, attempting to justify their action in making the search' on the ground that the defendant Gaddy was under arrest at the time.

The defendant, testifying for himself, denies any knowledge of the fact that the goods found and identified as belonging to Martin were stolen at the time he received them, and claims he bought a number of these things found in the store of Rains and the defendant from some unknown party. The defendant also stated he did not know how the articles of clothing found in the cushion of the truck got into the cushion; in other words, the defendant denied any knowledge of the fact that the property found in the store, on the Rains girl, under the house, on top of the house, or in the cushion, was stolen. The foregoing is in substance the testimony in this case.

The defendant has assigned ten errors alleged to> have been committed by the trial court. The first assignment alleges that the court erred in overruling plaintiff in error’s motion to suppress the evidence obtained by means of the search warrant. The record has been carefully examined, and the court has reached the conclusion that the court committed no error in overruling the defendant’s motion.

The defendant in his argument discusses at length his errors, and insists that the verdict is contrary to the law and the evidence, and that the evidence is insufficient to sustain the verdict and judgment. The record discloses a conflict in the testimony. This court has repeatedly held that, where there is any competent evidence in the record, though conflicting, the question of the sufficiency of the evidence is a question for the jury. Before a conviction will be reversed as contrary to tbe evidence, it must appear there is no testimony in the record from which the jury could rationally conclude defendant was guilty, unless it appears the jury was influenced by improper motives. Wininger v. State, 55 Okla. Cr. 78, 24 Pac. (2d) 664; Adams v. State, 54 Okla. Cr. 363, 21 Pac. (2d) 1075.

The next question discussed by the defendant is the instructions of the court. The defendant urges that the court committed error in its instructions from 1 to 6, inclusive, and presents a number of authorities which he thinks sustain his position that the court placed the burden of proof on the defendant. The instructions of the court have been carefully read and studied, and we hold that the court in its instructions properly declared the law applicable to the facts; that the errors complained of are without merit.

The instructions must be considered as a Avhole, and, when considered together, if they fully state the law applicable to the case, they are sufficient, although there may be verbal inaccuracies not of sufficient importance to' have misled the jury to the injury of the defendant. Alvarado v. State, 38 Okla. Cr. 360, 261 Pac. 983.

In Foust v. State, 36 Okla. Cr. 390, 254 Pac. 982, this court held:

“Where an accused has the possession of recently stolen property and attempts to explain his possession, the burden of proving the truthfulness of his explanation is on him, and, even though it may be reasonable, is a question of fact for the jury.”

Under our statute, the court must state to the jury all matters of law which it thinks necessary for the jury’s information in rendering its verdict, and, if it states the testimony of the case, the court must, in addition, inform the jury that they are the exclusive judges of all questions of fact.

Section 3062, O. S. 1931, 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; and, although the jury have the power to find a general verdict, which includes questions of law as well as of fact, they are bound, nevertheless, to receive the law which is laid down as such by the court.”

The defendant was accorded a fair and impartial trial; the court properly instructed the jury as to the law applicable to the facts. There are no errors in the record warranting a reversal.

The judgment is affirmed.

DOYLE, J., concurs. EDWARDS, J., not participating.


text:
    W. F. GRIFFIN v. STATE.
    No. A-8761.
    June 14, 1935.
    Rehearing Denied June 28, 1935.
    (46 Pac. [2d] 382.)

      J. P. Wishard and Billups & Billups, for plaintiff in error.
    J. Berry King, Atty. Gen., Smith 0. Matson, Asst. Atty. Gen., and T. B. Fisher, Co. Atty., for the State.
   DOYLE, J.

Appellant, Dr. W. F. Griffin, was convicted in the district court of Blaine county upon an information charging that in said county on the 81st day of December, 1982, he did commit the crime of unlawful possession of narcotic drugs in manner and form as follows:

“That is to say, the defendant in the county and state aforesaid and on or about the date aforesaid, then and there being, did then and there willfully, wrongfully, unlawfully and feloniously and without authority of law, have in his possession and under his control a certain quantity of narcotic drugs, to wit: approximately 4,746 half-grain tablets of morphine sulphate, and that the defendant, Dr. W. F. Griffin, a regularly licensed physician, did with the unlawful and felonious intent to violate the narcotic law of the State of Oklahoma, contrary etc.”

Upon the trial the jury returned their verdict finding “the defendant, W. F. Griffin, guilty of the crime of unlawful possession of narcotic drugs but cannot agree on the punishment to he assessed.”

Motions for a new trial and in arrest of judgment were duly filed and overruled. The court rendered judgment on the verdict and sentenced the defendant to confinement in the state penitentiary for a term of four years and to pay a fine of f1,000 and costs.

The record shows that the defendant, Dr. W. F. Griffin, was a practicing physician in Watonga, that on December 31, 1932, he was arrested by the service of a warrant of arrest at Ms office by tbe sheriff of Blaine county, and 4,746 half grain tablets of morphine were taken from his possession. On December 30, 1982, the defendant had been arrested by federal officers and was later charged with illegal sales of narcotics in the federal court. On application of the defendant, the case on September 18, 1933, was continued on account of illness of the defendant and thereafter on October 24th the case was stricken from the trial assignment, thereafter on November 3d the case was set for trial November 28, 1933. When the case was called for trial, the defendant filed a motion to strike the case from the assignment on the ground that the court was without jurisdiction to try the case before the case pending against him in the federal court for illegal sale of narcotics and set for trial at Oklahoma City January 8, 1934, had been disposed of, on the theory that he was being prosecuted in the state court for the same offense. The motion to strike was overruled. In the course of the trial the defendant objected to the introduction of state’s Exhibit A, the same being the morphine taken from the possession of the defendant when he was placed under arrest, on the ground that the same was taken without a search warrant. The court after inquiring into' the circumstances of the procuring of the evidence, in the absence of the jury, overruled the objection. Henry J. Law, sheriff, Merrill Baskins, under sheriff, and Sam Spainhower, Watonga chief of police, were present at the arrest and testified to substantially the same facts, that the morphine was taken from the defendant’s possession at the time of his arrest and incidental to it.

The lawfulness of his arrest was never questioned.

Taylor Rogers, state chemist, testified and identified the contents of the bottles that were taken from the defendant on December 31,1932, as being morphine sulphate.

When the state rested, the defendant demurred to the evidence on the ground that the court was without jurisdiction to hear and determine the case for the reason that prior to the time in which the complaint was filed in the case the United States District Court for the Western District of Oklahoma had acquired jurisdiction of the person of the defendant in a case growing out of the same transaction for which the defendant is prosecuted here; that all the evidence is based on state’s Exhibit A, which is a quantity of morphine taken from the defendant’s possession when he was under arrest, and at the command of the sheriff, the defendant delivered the same to the sheriff without a search warrant; and that the evidence is insufficient to show the commission of any offense against the laws of the state. The demurrer to the evidence was by the court overruled.

On the part of the defendant there was testimony of several medical experts as to what constituted the recognized practice of the medical profession in the use of morphine.

A number of witnesses qualified as character witnesses and further testified that the defendant’s reputation in the community as to' being an upright law-abiding citizen was good.

As a witness in his own behalf, the defendant testified to the effect that the quantity of morphine he had on hand was necessary in his treatment of certain addicts that he named, therefore his possession ivas for a lawful purpose. But on cross-examination he denied selling morphine in quantities on certain named dates to these same addicts. He then identified his only narcotic dispensing record, which was made by his wife at his direction, showing the number of persons for whom he furnished morphine and the quantities for each, which exceeded the amount he had testified to as necessary in their treatment.

The state, in order to show that the defendant did not have the morphine in his possession for strictly lawful purposes, presented evidence in the form of the defendant’s own records, to show that the defendant had acquired 48,-000 one-half grain tablets of morphine in the two-year period preceding the arrest, as shown by-Exhibit B and that his record of dispensing together with the amount on hand accounts for only 6,827 grains. Evidence was also produced, in rebuttal, of certain illegal sales made to addicts beginning the day before his arrest and dating back some three months, for the purpose of showing his intent, plan, or scheme to’ make illegal sales in connection with his possession of the 4,746 one-half grain tablets of morphine found in his possession. No record was made of these illegal sales on his narcotic dispensing record, nor is there any record showing how 17,172 grains of morphine were disposed of, that his own records show he purchased in the two years preceding his arrest.

While the defendant claimed that he had this large quantity for the treatment of certain addicts, yet he did not designate on his order forms that this excessive quantity was to be used for certain habitual users of morphine or addicts.

At the close of all of the evidence, the defendant interposed a demurrer to the same on the following grounds:

First, that the exhibits offered in the case on the part of the state were all obtained from the defendant while he was under arrest and without a search warrant and without due process of law and that the same were inadmissible in the case and without such exhibits the state had failed to make out a case against the defendant.

Second, that the evidence shows that the United States had acquired jurisdiction of the person of the defendant prior to that of the state and that said charge is now pending and is set for trial at Oklahoma City, January 8, 1934, and that the state is without jurisdiction to proceed in the case while said action is pending in said United States District Court.

Demurrer was overruled, exception reserved.

In the presentation of this case a number of errors are assigned upon the adverse ruling of the court to strike the case from the assignment for trial; upon the overruling of the demurrers to the evidence; and upon the overruling of the motions for new trial and in arrest of judgment, which may be summarized as follows: That the trial court was without jurisdiction to try the defendant on the information in this case prior to' the disposition of the federal charge for unlawful sale of narcotics pending in the United States Court for the Western District of Oklahoma.

The question presented has been passed upon by this court in the case of Neff v. State, 39 Okla. Cr. 133, 264 Pac. 649. Neff was convicted of manslaughter, the information charging that in Oklahoma county, November 27,1925, the offense was committed. The defendant, Neff, the next-day, November 28th, appeared before the federal court at Pawhuska and entered a plea of guilty on a charge of violating the Federal Prohibition Law (27 USCA) and was sentenced to serve a term of eighteen months imprisonment in the federal penitentiary at Leavenworth, and on the same day commitment issued.

The Attorney General for the state presented on January 12, 1926, a petition for writ of “habeas corpus ad prosequendum” to this court, on which the writ issued, and in response to the same the defendant, Neff, was surrendered by the federal authorities to the sheriff of Oklahoma county, this with the consent of the Attorney General of the United States. His trial resulted in a conviction, and sentences of imprisonment in the state penitentiary for a term of twelve years. He was then returned to the federal authorities. In the Neff Case it was contended that the state courts had no jurisdiction of him, and especially the district court of Oklahoma county was without jurisdiction for the reason that-he was a federal prisoner.

In support of his contention the defendant cites and quotes from the opinions in the cases of Ponzi v. Fessenden, 258 U. S. 254, 42 S. Ct. 309, 66 L. Ed. 607, 22 A. L. R. 879, and Kerker v. Superior Court, 38 Okla. Cr. 111, 259 Pac. 146.

In the Ponzi Case the following question was certified to the Supreme Court of the United States for decision:

“May a prisoner, with the consent of the Attorney General, while serving a sentence imposed by a district court of the United States, be lawfully taken on a writ of habeas corpus, directed to the master of the House of Correction, who, as federal agent, under a mittimus issued out of said District Gourt, has custody of such prisoner, into a state court, in the custody of said master and there put to- trial upon indictments there pending against him?”

Mr. Chief Justice Taft in the opinion says:

“One accused of crime has a right to a full and fair trial according to- the law of the government whose sovereignty he is alleged to have offended, but he has no- more than that. He should not be permitted to use the machinery of one sovereignty to obstruct his trial in the courts of the other, unless the necessary operation of such machinery prevents his having a fair trial. He may not complain if one sovereignty waives its strict right to exclusive custody of him for vindication of its laws in order that the other may also subject him to conviction of crime against it. In re Andrews (D. C.) 236 F. 300; United States v. Marrin (D. C.) 227 F. 314. Such a waiver is a matter that addresses itself solely to the discretion of the sovereignty making it and of its representatives with power to grant it.
“One accused of crime, of course, cannot be in two places at the same time. He is entitled to be present at every stage of the trial of himself in each jurisdiction with full opportunity for defense. Frank v. Mangum, 237 U. S. 309, 341 S. Ct. 582, 59 L. Ed. 969; Lewis v. United States, 146 U. S. 370, 13 S. Ct. 136, 36 L. Ed. 1011. If that is accorded him, he cannot complain. The fact that he may have committed two crimes gives him no immunity from prosecution of either.”

In conclusion, the Chief Justice says:

“But it is argued that when the prisoner is produced in the superior court, he is still in the custody and jurisdiction of the United States, and that the state court cannot try one not within its jurisdiction. This is a refinement which if entertained would merely obstruct justice. The prisoner when produced in the superior court in compliance with its writ is personally present. He has full opportunity to make his defense exactly as if he were brought before the court by its own officer. State v. Wilson, 38 Conn. 126, 136. The trial court is given all the jurisdiction needed to try and hear him by the consent of the United States, which only insists on his being kept safely from escape or from danger under the eye and control of its officer. This arrangement of comity between the two governments works in no way to the prejudice of the prisoner or of either sovereignty.
“The question must be answered in the affirmative.”

In the case of Kerker v. Superior Court, cited above, this court in the syllabus said:

“The pendency of an action and the holding of a defendant for trial in one court of the state does not preclude the state from instituting another prosecution for the same offense in a court of concurrent jurisdiction. A' plea in abatement or a plea in bar because of the pendency of the prior action will not lie in such latter action.”

Upon the record in this case there is no question of double jeopardy or double prosecution for the same offense presented; the fact that a defendant is charged in a federal court for some offense certainly cannot in any way prevent the state from trying the same defendant in a state court on another and different offense, while the federal case is pending against him. Yet that is what the defendant contends, even though no rule of comity is being violated in any manner. It seems the defendant himself wanted to be the one to determine where he should be tried first.

It appears from the record that at no time in either the state or the federal case was the defendant ever incarcerated, nor had there been an objection to his trial in the state court by the federal authorities. Had the defendant been held in custody by the federal authorities at the time his case in the state court was called for trial, then it would be true that the state could not take him from the federal authorities without their permission.

We remark here that the provisions of the Harrison Narcotic Act, December 17, 1914, as amended (26 USCA §§ 211, 691-707), exacting a license as a condition for the sale, dispensing, or distribution of drugs are not an exercise of the police power, but are for the purpose of revenue, and such license is a mere form of imposing a tax, and implies nothing more than that the licensee shall not be subject to the penalties of the act.

In the case of La Forge v State, 28 Okla. Cr. 37, 228 Pac. 1111, 1112, this court construing section 2290, C. O. S. 1921 (section 2679, Okla. St. 1931), providing:

“Whenever it appears upon the trial that the accused has already been acquitted or convicted upon any criminal prosecution under the laws of another state, government or country, founded upon the act or omission in respect to which he is upon trial, this is a sufficient defense,” held, “By virtue of this statute, where one has been punished for the illegal possession of intoxicating liquor under the federal law, he cannot be again punished for the illegal possession of the same whisky, at the same time and place, in violation of the laws of this state.”

Our statute above quoted is susceptible of but one con- ■ struction. And a conviction in a federal court for the same act as charged in a prosecution in a state court is a conviction under the laws of another “government” within the meaning of the statute; and by virtue of the statute alone such conviction is a complete defense to a prosecution for the same act or omission in the courts of this state.

It follows from what has been said that the court did not err in overruling the defendant’s demurrer to the jurisdiction of the court to try the case and the contention made that the court was without jurisdiction to try the case is, we think, destitute of merit.

Complaint is also made that it was error to admit in evidence state’s Exhibit A which is a quantity of morphine seized without a search warrant at the time of the defendant’s arrest. The same question has been several times presented and passed upon by this court.

In the case of Davis v. State, 30 Okla. Cr. 61, 234 Pac. 787, the second syllabus reads:

“There is a well-defined distinction between the right to seize contraband goods and papers under authority of a warrant of arrest and under authority of a search warrant. Under a warrant of arrest a seizure may follow as an incident to the arrest; a ‘search warrant’ is a kind of writ of discovery, and the arrest of the offender, if any, follows the discovery as an incident ancillary to' it.”

In the opinion it is said:

“The immunity guaranteed by the provisions of the Bill of Rights (Const. art. 2, § 30) against unreasonable searches and seizures does not extend to the tools, implements, and papers found on the person or in the possession of the person lawfully placed under arrest, where such tools, implements, or papers have been or manifestly may be used to perpetrate the crime charged. This provision was designed to protect persons from unwarranted invasions of the privacy of their persons and effects on mere suspicion without probable cause; but where one is legally arrested for a crime, upon authority of a valid warrant-for his arrest, the warrant of arrest itself implies probable cause. Under such circumstances, it is not incumbent upon the officer who makes the arrest to procure a search warrant in order to search for the means or instruments of committing the crime, found in the possession of the person arrested.”

In Berg v. State, 29 Okla. Cr. 112, 233 Pac. 497, 502, it is said:

“This court holds that property taken from the person of any one by an unlawful search of his person is not admissible in evidence against him. But where an officer makes a lawful arrest, he may take from the person arrested any firearms, counterfeit money, burglar tools, or other papers or documents, or other matter to be used with criminal intent, and that such things so taken may be used as evidence against the person arrested.”

In Washington v. State, 37 Okla. Cr. 415, 259 Pac. 150, 151, it is said:

“We deem it sufficient to say that only unreasonable searches and seizures are prohibited. The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime, and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, or which may be of use as evidence at the trial, is not to be doubted.”

Upon the trial the defendant, as a witness in his own behalf, testified as to his possession of the morphine, introduced in evidence, against the admission of which he now complains.

Several other errors are assigned and argued, but after careful examination we find all of them so lacking in substantial merit that we cannot feel justified to extend the opinion by their discussion.

Upon consideration of the whole case we are of the opinion that the defendant was fairly tided, the issues fairly submitted, and no error requiring a reversal is shown.

The judgment appealed from is therefore affirmed.

DAVENPORT, P. J., concurring. EDWARDS, J., absent.


text:
    OKLA DAVIDSON v. STATE.
    No. A-8826.
    June 21, 1935.
    (46 Pac. [2d] 573.)

      •Geo. M. Frittz and Jack Harris, for plaintiff in error.
    The "Attorney General, for the State.
   DOYLE, J.

Plaintiff in error was convicted in the district court of Texas county upon an information charging that in said county on the 3d day of June, 1934, Okla Davidson did commit the crime of rape upon Iona Wright, a female under the age of 14 years, not the wife of the defendant, said defendant being over 18 years of age.

Upon his trial the jury found him guilty as charged, and fixed his punishment at confinement in the penitentiary for 15 years. Motion for new trial was duly filed and overruled.

September 26, 1934, the court entered judgment and sentenced him to- confinement in the reformatory at Granite for a term of 15 years. To» reverse the judgment he appeals.

After a careful examination of the record, the conclusion of the court is that the judgment in this case cannot be permitted to stand.

The record shows the preliminary complaint was filed before J. E. Dailey, justice of the peace, August 1, 1934, and the defendant was arrested September 7th at Amarillo, Tex.

It appears that Iona Wright was born December 30, 1920, and lived with her parents in Guymon; and at the time of the trial had been detained in the county jail for about a month following a hearing before the county court pending an order of commitment to the State Industrial School at Tecumseh; that the defendant was one of at least five persons charged with like offenses based on her delinquencies; three of these young men had entered pleas of guilty, and were each sentenced to confinement for 15 years, then paroled to their parents by the district court of Texas, county.

Iona Wright testified that she was at the home of Mrs. Elsie White when the defendant and Clifford Rhodes came there about the middle of the afternoon to' get bottles; that the Yictrola was started, and she danced with the defendant, Mrs. White with Rhodes,, and that she and the defendant danced into another room and he “shut the door and there we had intercourse”; that they were in the room five or ten minutes, then returned to the other room and danced again; that about 4 days later she was visiting Mrs. White, and the defendant came there and again had sexual intercourse with her, this time in the north room where the Victrola was.

On cross-examination she stated that she had lived in Guymon about 4 years; that she is detained in the county jail and has been there about a month; that she has a disease; that Dr. Morris Smith is treating her; that she never did say anything about the conduct of the defendant to her mother or father.

Mrs. Elsie White, wife of King White, testified that she lived in the southwest part of Guymon in a house behind the Phillips Peed Store; that Iona Wright was visiting her when the defendant and Clifford Rhodes came there that day to get some bottles; that the Victrola was started and they commenced to dance, Iona with defendant, witness with Clifford Rhodes; that her children at the time were outside playing; that the defendant danced with Iona into another room and “then danced in there just a little while and then came back.” She further testified:

“Q. Mrs. White, you have pleaded guilty to maintaining a public nuisance?
“The Court: Objection overruled, you may answer.
“Q. Is that a fact? A. That’s what they said.
“Q. You are now being confined in the jail on this charge? A. Yes, sir.”

On cross-examination she stated that it was about 3 o’clock in the afternoon when they came there; that she had lived in Guymon 17 years and was the mother of six children; that Iona Wpight said she was out of cigarettes and the defendant gave her 50 cents and she went and got some cigarettes, then Iona asked the defendant to gn and get some whisky and he refused; that the defendant told witness that, if different parties did not quit giving that girl liquor to drink, witness was going to get into trouble; that, after the defendant and Rhodes left, Iona told witness that the defendant did not have sexual intercourse with her.

On redirect she testified that the defendant came to her place when this girl was there three or four days later and asked her if she had any bottles; that her children were there and she went into another room for a little while; that there was no door between the two' rooms, just a curtain, not drawn; that the defendant was there just a few minutes.

The defendant testified in his own behalf:

That he had lived in Texas county practically all his life, was married, had a wife and two children, a son aged 14 and a daughter aged 12. That on or about the Bd of June he, with his brother-in-law, Clifford Rhodes, went to the King White residence to get some bottles. Mrs. White and several of her children and Iona Wright were there; the children were from 4 to' 14 years old. The Yictrola was started, and he danced with the Wright girl and his brother-in-law danced with Mrs. White. That the Wright girl said she had something she wanted to tell him and they danced into the next room and sat down on the bed and she asked him if he would not get some whisky and all go on a party; then they went back and danced again. He then got the bottles and left.

That they were not there more than 30 minutes. He denied that he ever had sexual intercourse with Iona Wright and denied the acts she testified to.

That he called at Mrs. White’s to get some bottles 4 or 5 days later and the Wright girl was there. That he was not there more than three or four minutes. That Mrs. White had told him Iona was infected with a venereal disease.

On cross-examination he stated that, when he heard a complaint had been made against him, he sent for Tom Wright, the girl’s father, and told him that he was not guilty, that something was wrong some place, and her father told him that he had sworn to the complaint, and said, if he had not sworn to it, he would not swear to it now, and her father advised him to leave, and told him that was the best way out of it, then he said, “Mr. Wright I wouldn’t leave under any circumstance if I thought I could make bond because I am not guilty”; that 4 or 5 weeks later he was arrested at Amarillo', Tex. Sheriff Sullivan appeared the second day after and told him that he was going after the papers to bring him back, and he said to the sheriff, “Adley you got me accused of this charge; I ain’t going back until I have to. You know the condition of all the other boys, I read in the paper where Ewel Dixon killed himself on the same charge and you know they have sent three boys to the penitentiary for 15 years on the same charge and I am not going back if that girl swears I am guilty, no matter how innocent I am.”

George Baines testified that he was present when Tom Wright, Iona’s father, had a conversation with the defendant, and Okla told him he had not done anything wrong, and Tom told him if he would leave the country he would hush it up and there would not be anything more said about it, and Okla said that if he could make bond he would not leave.

Tom Wright in rebuttal testified: “I told him if I was guilty of that kind of a trick I would leave the country and never come back”; that the conversation was behind the defendant’s restaurant, and George Baines had gone into the restaurant at the time; then he got into the defendant’s car and was driven home.

O. A. Sullivan testified that his wife had the defendant arrested at Amarillo', Tex., and he received notice from, the sheriff there that they were holding him and that the man would not return without extradition papers; that he then secured an extradition warrant from the Governor of Oklahoma to the Governor of Texas for the return of the defendant, and then went to Amarillo and the defendant said, “I am not going back until I have to”; then he went to Austin, Tex., secured the papers and returned to Amarillo and returned with the defendant; that Joe Sullivan, his brother, and Fred King, the county attorney, accompanied him on the trip.

The principal assignment of error is that the evidence is insufficient to justify the verdict or support the judgment of conviction, in that the testimony of the prosecuting witness is not corroborated by any other witness and that the state’s testimony was conflicting, that the court erred in the admission and rejection of certain evidence, and that the instructions given by the trial court incorrectly state the law.

Our Penal Code provides that rape committed by a male over 18 years of age upon a female under the age of 14 years is rape in the first degree (section 2518, St. 1931); and that rape in the first degree is punishable by death or imprisonment in the penitentiary, not less than 15 years in the discretion of the jury, or, in case the jury fail or refuse to fix the sentence, then the same shall be pronounced by the court (section 2519, St. 1931).

The court gave the jury the following instruction:

“No. (9) You are instructed that the defendant may be convicted upon the uncorroborated evidence of Iona Wright, providing you find she is a female person under the age of 14 years and not the wife of the defendant, providing you find beyond a reasonable doubt that the defendant had sexual intercourse with Iona Wright as alleged in the information. (Excepted to by defendant. Exception allowed.) ”

This instruction tells the jury that the testimony of the prosecuting witness need not be corroborated and makes no qualification or exception. It calls attention to the testimony of a single witness, although there were other witnesses for the state. The danger of such an instruction is that the importance and credibility of such testimony are likely to be magnified in the minds of the jury.

While a conviction for statutory rape may be had on the uncorroborated testimony of the prosecuting witness, this is only warranted when all the other facts and circumstances of the offense are corroborative of her testimony and her statements are not contradictory. In cases of this character it is reversible error, where the evidence is conflicting and more than one witness testifies for the state, to single out the testimony of one of such witnesses as the basis for a verdict of guilty.

It was said by this court in the case of Morris v. State, 9 Okla. Cr. 241, 131 Pac. 731, 735:

“This court does not hold with some that, as a matter of law, rape cannot be established by the uncorroborated testimony of the prosecutrix, but in common with all courts recognizes that, without such corroboration, her testimony must be clear and convincing. And, where the testimony of the prosecutrix bears upon its face inherent evidence of improbability, there should be corroboration by other evidence, connecting the defendant with the commission of the crime. The law is that the life or liberty of a citizen shall be taken only in case the right to do so is established beyond all reasonable doubt; and while there is no rule of law which forbids a jury to convict of rape on the uncorroborated testimony of the prosecutrix, provided they are satisfied beyond a reasonable doubt of the truth of her testimony, yet the courts have always recognized the danger of conviction, on her uncorroborated testimony, and the testimony of the prosecutrix, if inherently improbable and uncorroborated, will not justify or support a conviction; as the only reasonable conclusion in such cases is that such verdicts are the result of passion or prejudice, and therefore contrary to law.”

In the case of Ferbrache v. State, 21 Okla. Cr. 256, 206 Pac. 617, this court held that:

“Under the laws of this state, conviction for rape may be had on the uncorroborated testimony of the prosecutrix; but when her testimony is contradictory, and the defendant testifies and denies specifically the testimony of the prose-cutrix, and his testimony is corroborated, the testimony of the prosecutrix, standing alone, is not sufficient to warrant a conviction.”

In the case of Witt v. State, 29 Okla. Cr. 357, 233 Pac. 788, the syllabus reads:

“In a case of rape where all the material evidence on the part of the state is contradictory, inconsistent, and unreasonable and bears upon its face inherent evidence of improbability, it is insufficient to sustain a conviction, and in such case the verdict will be set aside.”

We have examined the record carefully, and are unable to reconcile the conflicting testimony; the prosecuting witness, recalled four times, each time made conflicting statements. There is a direct conflict in the testimony of the witnesses for the state as to the facts and circumstances of the offense charged, and the defendant’s denial is in part corroborated by the state’s witness, Mrs. White.

Courts are especially charged with the duty to carefully examine the evidence in rape cases, where, as observed by Lord Hale, an accusation is easily made, difficult to be proved, and still more difficult to be defended by one ever SO' innocent.

After consideration of the entire record, we are inclined to think that the verdict was more the result of prejudice or public sentiment than the calm and dispassionate conclusion of the jury upon the facts in evidence.

The record discloses other rulings, arising during the ■course of the trial, that would be difficult to defend.

For the reasons stated, the judgment of the district court of Texas county is reversed and the case remanded.

The .record discloses that the defendant, being unable to give bail, is now confined in the reformatory at Granite. The warden of the reformatory will surrender the defendant to tbe sheriff of Texas county, who' will hold him in custody until otherwise ordered, according to law.

DAVENPORT, P. J., concurs. EDWARDS, J., absent.