text:
    JOHN COPPAGE v. STATE.
    No. A-9203.
    Sept. 2, 1937.
    (71 Pac. 2d 509.)

      Jno. V. Roberts, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, John Ooppedge, informed against as John Coppage, hereinafter for convenience referred to as the defendant, by information was charged in the district court of Garfield county with the crime of the larceny of an automobile; was tried, convicted, and sentenced to serve a term of five years in the state penitentiary. The record was properly saved, and the defendant, by case-made with petition in error attached, appeals.

The testimony in this case in substance is:

Lula Austin stated:

“I live at 606 West 8th street, in the city of Enid. On the 12th day of December, 1931, I was the owner of a Master Chevrolet Six coupe automobile; I bought this car on the 30th day of October, 1931; it was an all black coupe, had dual horns and a radio; I had owned it forty-two days; I took a trip in the car and in loading it dropped a box on the turtleback and dented it; on the 12th day of December, 1931, the car was taken from in front of my house; the next time I saw the car was on March 8th, 1935, at Carnegie, Oklahoma, in the possession of Mr. Caruth, an officer.
“I advised the officers the motor number, the color of the car, the radio and the dual horns; I had left some black coat hangers in the car, and on one occasion I had! hauled some fertilizer in the car and had spilled some of it out in the car. When I went to Carnegie I identified the mark on the turtleback of the car; there was one coat hanger like the ones I used and left in the car; I also found a trace of the fertilizer in the back of the car.
“The radio had been removed from the car. You could see it was equipped for a radm; the dual horns were gone. I have no doubt about the car being mine.
“The car was turned over to me and I turned it in to the insurance company and they paid me the insurance. Mr. Cansler and Mr. Caruth were present in the garage when I examined the car and identified it. I have no interest in the case except to give the true state of facts to the court.”
On cross-examination witness stated the numbers had been mutilated, wheels had been changed; “It had black Avheels AAdien I lost it and they Avere straw colored wire wheels when I found it; the radio was off, and the dual horns gone and a heater in place of the radio; I have not seen the defendant or talked with- him about the car.”

Watt Caruth in substance stated:

“I am city marshal of Carnegie, and was in February and March, of 1935;: I saw the defendant in Carnegie, he came to- work for the Highway Department, fixing to build a bridge; I know the defendant as he used to live on a farm close by, and I saw this defendant in 1934. I took down the license number and sent to the Highway Department; one of the members of the Highway Department called me by phone and instructed ’me to take possession of the car, that it was a stolen car; I took the car from John Coppedge, this defendant, on or about the 20th day of February, 1935; the defendant stated he had bought the car from a second-hand dealer in El Reno, and told me the name but I do not remember it; I put the car in the Ford Garage, at Carnegie, and Mrs. Austin and an insurance man came down; Mr. ¡Scruggs from the High-Avay Department was also there.
“The defendant stayed around for three weeks after AA'e took possession of the -car before he was arrested; when I took possession of the car the defendant gave me the keys to the car. The defendant told me he was a poker player. The defendant was around Carnegie in this car for about a week before I picked it up; I suspected it was a stolen car but I wanted to wait until I heard from the Highway Department.”

On cross-examination witness stated the defendant told him he purchased the car from a man named G. L. Gross, in El Beno; Gross got the title to the car and brought it to him.

J. H. Scruggs, testifying for the state, stated “From the description of the car given by Lula Austin, the owner of the car, I identified the car; it had a dent in the turtle-back and bits of fertilizer in the back of the car.” Scruggs’ testimony is in substance the same as the other officers who made an inspection of the car.

The defendant, testifying in his own behalf, stated he bought the car from a used-car lot in El Beno>, from a man named G. L. Gross, for $500; the defendant stated! a woman and a second cousin of his were with him at the time; after he looked the car over, which was setting at the curb in front of the used car lot, “My cousin, the woman and I went with the salesman to the notary public who drew the transfer of title.” Defendant stated he could not produce the notary for the reason that he had died in the meantime.

The defendant also stated Gracie Arganbright had moved to Kansas City, Mo., and he could not have her present. His cousin’s testimony, taken at a former trial, was read to the jury, as he was absent. The testimony of the cousin showed that while the defendant and Gross went to the notary public to have the title prepared, he and the Arganbright woman remained in the car.

On cross-examination defendant was asked by the county attorney question after question attempting to connect the defendant with the larceny of another car, but the statements disclosed that if he had been connected with the car he had not been prosecuted.

The testimony on behalf of the state shows that each of the witnesses who spoke to the defendant about the car was told he bought the car in El Reno, from Gross, and that he had paid $500 for it. It is further shown by the state’s testimony that the defendant appeared in Carnegie with the car and was there for some time before the car was identified as being a stolen car, and that he drove it publicly upon the streets of Carnegie where any one might see it. The defendant denied he had anything to do with the stealing of the car, or that he had been in Enid at the time the car was stolen; that he did not know the car was stolen when he bought it from the man in El Reno. He further testified that when the charge was brought against him he tried to locate the man, G. L. Gross, from whom he bought the car, and that he made trips to different places trying to locate him and failed to do so. The state did not contradict this statement of the defendant, only contradicting it to the extent of saying there was no man in the city of El Reno by the name of G. L. Gross that could be located by the state authorities.

The foregoing is the substance of the testimony both on behalf of the state and the defendant.

The defendant in his petition in error alleges five errors committed by the trial court:

“1. That the court erred in refusing a hearing on and in overruling the plaintiff in error’s plea of former acquittal on said charge.
“2. That the court erred in admitting incompetent, irrelevant, and immaterial testimony over the objection of the plaintiff in error.
“3. That the judgment of the court is contrary to the law.
“4. That the verdict of the jury and judgment of the court is contrary to the evidence and is not supported by the evidence.
“5. That the judgment imposes, an excessive and unauthorized punishment on this plaintiff in error.”

The defendant earnestly urges that the court erred in refusing a hearing and overruling his plea of former acquittal in the charge upon which he was tried and convicted in this case. The defendant in his plea of former acquittal or jeopardy sets forth that the minutes of the court show a jury was impaneled and sworn on September 26, 1935, and at 10:45 a. m., the said day the taking of evidence began; that the case was finally submitted to the jury at 12 m., September 27,1935, and the court instructed the jury further and the jury retired for further deliberation at 5:40 p. m., and at 9:15 p. m. the minutes show further: The court convenes; all officials present; jury in the box; jury unable to agree upon a verdict. The court declares a mistrial. Jury excused from further consideration of the case, and until Tuesday morning, October 1st, 1935.

Section 21, art. 2, of the Constitution of Oklahoma, reads as follows:

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

It is contended by the defendant that the jury in his former trial was discharged without his consent, and it is further contended that the question of the discharge of the jury without the consent of the defendant before verdict, has been before this court several times, and the rules announced in these cases seems to be in accord with the great preponderance of authorities throughout the United States.

Under our statute (12 Okla. St. Ann. § 583), in order . that a court may be warranted in discharging the jury before verdict the record must show: First, the jury was discharged by consent of both parties entered upon the minutes of the court; or, second, unless at the expiration of such time the court deems proper and it satisfactorily appears that there is no reasonable probability that the jury can agree.

Under the statute and holdings of this court, the length of time the jury should be required to deliberate and the probability of an agreement must be determined by the facts and circumstances of the particular case, and the court’s discretion will be conclusive unless it has abused its discretion in that regard. Kent v. State, 8 Okla. Cr. 188, 126 Pac. 1040, 1045.

In Kent v. State, supra, in the body of the opinion the court said:

“The prevailing rule is that when, after a reasonable confinement, the jury avow an utter inability to agree in respect to their verdict, the court in the exercise of sound discretion may discharge them, and that such discharge would not operate as a bar to further prosecution; and it is further held that the necessity for the discharge of the jury, whatever it may be, must appear on the record, and it must be adjudged by the court that such necessity existed for the discharge of the jury.” Thompson v. U. S., 155 U. S. 271, 15 S. Ct. 73, 39 L. Ed. 146; Kelly v. U. S. (C. C.) 27 F. 616.

It is further held by the court in Kent v. State, supra, that authority to discharge the jury without the consent of the defendant exists under the statute, if at the expiration of such time the court deems proper, and it satisfactorily appears that there is no probability that the jury can agree. The question whether they have been so held together, and whether there is a reasonable probability that they can agree, are judicial questions. As such they cannot be arbitrarily or capriciously determined by the court. The length of time a jury should be kept together', and the probability of an agreement, must be determined by the facts and .circumstances of the particular case, and the court’s discretion will be conclusive unless it has abused its discretion in that regard.

A careful examination of the minutes of the court of the previous trial of the defendant fails to disclose that when the court discharged the jury from further consideration of the case the defendant objected.

In Goodman v. State, 41 Okla. Cr. 405, 273 Pac. 900, this court in the first paragraph of the syllabus stated:

“Where the defendant has been put upon trial before a court of competent jurisdiction upon information sufficient to sustain a conviction, and a jury has been empaneled and sworn to try the case, and testimony has been taken, jury instructed, and jury retires to consider its verdict, and is then unnecessarily discharged without the consent of the defendant, the discharge of the jury operates as an acquittal, and the defendant in such case has been put in jeopardy and cannot again be tried for the same offense.”

Beginning with Schrieber v. Clapp, 13 Okla. 215, 218, 74 Pac. 316, 317, on down to Goodman v. State, supra., this court has strictly adhered to' the rule that where a jury is discharged without the consent of the defendant, such discharge of the jury, although improper, results in an acquittal of the defendant. There is nothing in this record to show that the court abused its discretion in discharging the jury. It is true he did not go into detail and interrogate the jurors as to the probability of the jury agreeing, but the minutes of the court in part are as follows:

“Jury unable to agree on a verdict. The court declares mistrial. Jury excused from further consideration of the cause.”

The defendant in his plea of former jeopardy states that the jury was discharged over his objection, but the record does not bear out this statement, and the minutes of the clerk fail to show that when the court ordered the jury discharged the defendant objected.

The record is silent on that question, and does not show that the court discharged the jury over the objections of the defendant.

In White v. State, 23 Okla. Cr. 198, 214 Pac. 202, 203, in the third paragraph of the syllabus the court said:

“Where the constitutional right is for the sole benefit of the accused, in the nature of a privilege, that right may be waived by express consent; or by implication, from conduct indicative of consent; or by failure to claim or assert the right in seasonable time.”

In Allen v. State, 13 Okla. Cr. 533, on page 542, 165 Pac. 745, on page 748, L. R. A. 1917E, 1085, in the body of the opinion the court states:

“It is well established that after the jury has been empaneled and sworn in a criminal case any discharge thereof without sufficient cause operates as an acquittal, in that it effectually bars another trial for the same offense. But to have this operation and effect such discharge must have been made without the consent, expressed or implied, of the defendant. 1 Bish. New Crim. Law, § 998.”

In State v. Frisbee, 8 Okla. Cr. 406, 127 Pac. 1091, in the second paragraph of the syllabus the court said:

“(a) A defendant in a criminal case may waive any right not inalienable, given him by the statute or by the Constitution, where it can be relinquished without affecting the rights of others and without detriment to the community at large.
“(b) A defendant in a criminal case may waive any right not inalienable, given him by the statute or by the Constitution, either by express agreement or by conduct, or by such failure to insist upon it in seasonable time as will operate as an estoppel to his afterwards setting it up against the state.”

The defendant in this case by his silence, and without objecting to the discharge of the jury, and having the objections entered on the minutes of the court, waived his constitutional right, and he is not entitled to be discharged on his plea of former acquittal.

The remaining assignments of error will be considered together, as they relate to the same question, the admission of incompetent, irrelevant, and immaterial testimony over the objection of the defendant; the judgment of the court is contrary to law; the verdict of the jury and judgment of the court is contrary to the evidence and is not supported by the evidence; and the jury imposed an excessive and unauthorized punishment on this plaintiff in error.

A careful reading and study of the testimony shown by the record shows the loss of an automobile by Mrs. Austin, and two months or more later the car was found1 in Carnegie, in the possession of the defendant, and identified by Mrs. Austin as being her car that was stolen, from in front of her home in Enid. The wheels had been changed and many other changes made in the car, yet the testimony shows Mrs. Austin identified the car by a dent in the turtleback where she had dropped a box, and also by some fertilizer in the car.

The defendant’s testimony shows the usual contention on a charge of the larceny of an automobile; that is, that he bought the car from a secondhand dealer, G. L. Gross, in El Reno, and paid ¡¡>500 for it. G. L, Gross could not be found, and no other testimony was offered by the defendant showing any man by the name of G. L. Gross had been a resident of El Reno or engaged in business there. This court' has repeatedly held that the jury is the exclusive judge of the weight of the evidence, and if there is a clear conflict in the evidence or it is such that different or logical inferences and deductions can properly be 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. Choate v. State, 37 Okla. Cr. 314, 258 Pac. 360; Campbell v. State, 23 Okla. Cr. 250, 214 Pac. 738; Mayse v. State, 38 Okla. Cr. 144, 259 Pac. 277; Pickett v. State, 35 Okla. Cr. 60, 248 Pac. 352; Humberd v. State, 56 Okla. Cr. 23, 32 Pac. (2d) 954; Kisselburg v. State, 56 Okla. Cr. 46, 33 Pac. (2d) 236; Clemmer v. State, 56 Okla. Cr. 354, 40 Pac. (2d) 37.

There is no testimony in the record to show that the jury in rendering its verdict was influenced by passion or prejudice. The evidence is sufficient to sustain the verdict and judgment. The court properly instructed the jury as to the law applicable to the facts in the case. The defendant was accorded a fair and impartial trial. There are no errors in the record warranting a reversal.

The judgment of the trial court is affirmed.

DOYLE and BAREFOOT, JJ., concur.


source: Caselaw Access Project

author: BAREFOOT, J.

license: Public Domain

text:
    DOLPH MORRIS v. STATE.
    No. A-9217.
    Sept. 2, 1937.
    (71 Pac. 2d 514.)
    Brett & Brett and R. A. Howard, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore,' Asst. Atty. Gen., and Robert W. Richards, Co. Atty., for the State.
   BAREFOOT, J.

The defendant was charged with the crime of murder, for the killing of Simon Marshall, in Carter county, Okla., on the 5th day of February, 1936. He was tried and convicted of manslaughter in the first degree and sentenced to serve a term of twelve years in: the penitentiary, and he appeals.

The evidence reveals that the defendant is a full-blood Choctaw Indian, 30 years of age; that on or about the 5th day of February, 1936, the defendant and his wife received word that her sister had died; that immediately they went to a place in Ardmore known as “The Canteen,” and purchased whisky two different times, and she proceeded to get drunk; that along late in the afternoon they drove out east of Ardmore for the purpose of informing her aunt of the death of her sister; her aunt was not at home and they started back toward Ardmore; it was dark but the moon was beginning to come up; his wife got out of the car and while out began to hollow.1 and scream; the defendant testified that he got out of the car for the purpose of assisting his wife back in the car, and that he had his arms around her when some one caught hold of his shoulder and jerked him; he did not know who it was and, as he said, he “thought it was some one trying to rob or hijack him,” and that he whirled and struck the party in the dark; that after he struck this party some one clinched him; he did not know whether it was the same man or not; that they grappled and scuffled and both fell to the ground together; that while scuffling on the ground he felt something like a rock and hit the man who was on the ground with him. The party asked him not to hit him any more and he did not do so. He asked the man who he was and for the first time learned that he was the man who lived some distance up the road. He testified that there was no one there except his wife and that about 15 minutes thereafter Mr. Bullard and his wife came down there. He asked him who he was and he said he was Mr. Bullard. He testified that he did not know the parties and had no • animosity against them and was doing only what he thought necessary to protect himself from injury and great bodily harm. He further testified that he was not drunk at the time and knew what he was doing.

The wife of defendant was so drunk that she did not remember anything that happened after she got out of the automobile.

The witnesses for the state, Mr. and Mrs. George Bullard, testified that they lived about two miles east of Ardmore on the highway; that he was 69 years of age, and that her stepbrother, Simon Marshall, who was visiting them, was 71 years of age; that on the evening of the '5th day of February, 1936, some time after 7:30 p. m., they heard terrible screams and thought some one was in distress; that it continued on so long that Mrs. Bullard urged! her husband and stepbrother to go and see what it was; that they had been gone some time and she became uneasy about them, when Mr. Bullard came up all exhausted and worn out and sank into a chair and said, “Send for the police.” After calling them she asked where Simon was, and he said “he is down there lying in the road.” They both went down there and she saw her stepbrother lying, in the road with his head bruised and blood gushing out of the side of his head. Defendant and his wife were there about 25 feet from where deceased was lying. She held the head of deceased until the officers arrived and he was taken to the hospital at Ardmore, where he died on February 10, 1936, as a result of the wounds he had received.

• The doctors testified that he received a wound over the left eye which fractured his skull, and that this was the cause of his death. They also testified that he had many bruises and scratches on and about his face and! body, and that his jaw was broken.

The testimony of George Bullard was that when he and deceased went to the scene of the difficulty they saw the wife of defendant sitjting at the '¡side of the roadl cursing and abusing her husband; that defendant askedl him who he was and he told him he was George Bullard, and he wanted to know where he lived, “and I told him up in that house there.” He testified further, as follows:

“Q. What took place then? A. I don’t think anything. I went in the ditch, I was knocked unconscious. Q. At the thnet you were struck did you make any effort to talk to this party? A. No, sir, I walked up and stood! there and he asked me my name and I told him. Q. Whereabouts was he? A. Maybe 12 or 15 feet from her up toward the middle of the road. Q. Twelve or fifteen feet up toward the middle of the road? A. Yes. Q. You and Mr. Marshall were there in the middle of the road? A. Yes, sir. Q. Did any other conversation take place there except what you stated? A. I didn’t hear any. Q. Whereabouts was Mr. Marshall standing as regards to you? A. When he was standing there, Mr. Marshall wasi on the left side; we was facing to the west toward him. Q. The defendant? A. Yes. Q. Was it dark when you got there? A. The moon was kinda coming up from behind the house, it tkrowed a shadow. His car was on the north side. Q. Which side of the road was this woman on? A. On the south side of the road just below the car. Q. How far were you standing from the automobile at the time you were struck? A. I couldn’t say, it was a little bit shadowy dusk down there but it might have been 20 or 25 feet, something like that. Q. And the defendant or the party later identified as the defendant was, you say, about 15 feet away from the woman who was in the bar ditch when you came up there? A. Somewhere about there. Q. Mr. Bullard, did you walk to him or did he come to yon? A. I couldn’t say, I didn’t see him, the first thing I knew he hit me and knocked me out and I couldn’t tell how he moved. Q. You were standing there? A. Yes, we were a little difference apart. Q. Was that when the conversation took place, when lie asked you who you were? A. Yes, sir, then I was struck and I didn’t know no more for awhile until I came to. Q. Did you see anyone else there besides the man and woman and Mr. Marshall? A. No, sir. Q. When you regained consciousness what did you do? A. I came crawling out of the ditch and saw Mr. Marshall laying there with blood running out the side of his head and blood on his arm, and I think he had his cap on. I went on up to the house and it took a long time to get there, I went in and dropped in a chair. Q. Whereabouts were you struck? A. I am not certain whether it was here (indicating) or back here (indicating). Q. What did you do? A. I told my wife to phone for the police; she phoned for the police and then she and I went back down there. * * * Q. When you went down there it was pretty dark, was it? A. The moon was kinda in behind the house, but it was coming up. Q. Did you know the defendant at that time? A. I did not; I had never seen him that I know of.”

Jones DeArman, a policeman, testified to going to the scene of the difficulty about 8:15 p. m., and seeing the parties as has been testified to by Mrs. Bullard; that he asked the defendant “Who did this?” and he said, “It was Hunter Pickens’ boy.” He then testified as follows:

“Q. What occurred after that? A. I said, ‘Where is the boy?’ and he said, ‘I don’t know,’ and I said, ‘Have you seen the boy?’ and he said, ‘No.’ I said, ‘Why did you tell me he did it?’ He said, ‘Well, he is a bad boy.’ ”

Howard Johnson, a policeman, testified to going to the scene with Officer DeArman and corroborated his testimony with reference to the location of the parties, and he further testified that he found a rock upon which there was blood and hair, lying beside the road. This rock was introduced in evidence, and a picture of the same, and a picture of the cap worn by deceased at the time of the difficulty, -are both attached to the record. He further testified that the defendant, while being carried by him from the city jail to the county jail, admitted that he did it. Both of these officers testified that defendant was drunk at the time they arrested him at the scene of the difficulty.

The first assignment of error urged by defendant is that the court erred in overruling his motion challenging the jury panel. The ground for this motion being that the defendant was a full-blood Choctaw Indian and that there was a large number of full-blood Choctaw Indians in Carter county who were qualified to act as jurors, but because of their race they were excluded from the jury list prepared by the jury commissioners. The only testimony offered by the defendant to support this contention was the introduction of the jury list of the district court of Carter county for the first half of the year of 1936 containing 230 names. No testimony was introduced in explanation of this list or to show to what race any of the jurors belonged. The court made a voluntary statement to the jury outlining the procedure followed in the selection of the jury commissioners and in reference to full-bloods being on this particular panel said: “I don’t know of any there. I just looked over the list.” No evidence was introduced to show that there were or were not full-bloods upon the jury panel, nor whether or not any of Indian blood were upon the panel. The court at one time made the voluntary statement that he saw upon the list some who were of Indian blood. Under these. circumstances and the holdings of this court, there was no error in the overruling of the motion of the defendant to set aside the jury panel. The burden was on defendant to prove that full-blood Indians were excluded from the jury panel solely on account of their race. A careful examination of the record discloses no such evidence. Defendant having; failed to offer any proof on this question to meet this burden, it was not error for the court to overrule the challenge. Scott v. State, 29 Okla. Cr. 324, 233 Pac. 776; Hollins v. State, 56 Okla. Cr. 275, 38 Pac. (2d) 36; Powell v. State, 60 Okla. Cr. 267, 63 Pac. (2d) 113; Maddox v. State, 12 Okla. Cr. 462, 158 Pac. 883.

It is next urged by the defendant that the giving of instruction No. 7, which dealt with justifiable homicide, was error. The defendant cites no authority showing, any error in this instruction. We have carefully examined the same, and find that the instruction was very favorable to the defendant, and that there was no error therein.

It is next urged by the defendant that the verdict of the jury is not supported by the evidence, and is contrary to law, and that the jury was influenced by passion and prejudice. All of these errors may be considered together. The facts surrounding this killing are shrouded in doubt for the reason that none who were there know how it happened. Neither the defendant nor the deceased knew each other. There was no provocation for the killing. The defendant testified that he was sober and attempts to justify his action that he thought he was being robbed or hijacked. Both the officers testified that he Avas drunk at the time they arrived, and this seems to be the most reasonable solution of this killing. There is no reason why the two old men, one. 69 and the other 71 years of age, going out under the circumstances they did in this case, should provoke a difficulty with a young, full-blood Indian, 30 years of age, with whom they were not acquainted, and whom they had never seen.

The jury in this case saw the witnesses upon the stand, heard their testimony, and rendered a verdict of guilty. There is nothing in the record which Would justify us in saying that this verdict is contrary to law. There is sufficient evidence in the record to warrant the jury in returning a verdict of. guilty.

W'e have carefully weighed the facts and have come to the conclusion that the ends of justice would best be met by reducing the sentence assessed against this defendant to a period of six years in the penitentiary.

It is therefore ordered that the sentence in this case be reduced to six years, and as thus modified, the judgment of the district court of Carter county is affirmed.

DAVENPOBT, P. J., and DOYLE, J., concur.


author: DAVENPOBT, P. J.

text:
    CLEO INGRAM v. STATE.
    No. A-9231.
    Sept. 10, 1937.
    (71 Pac. 2d 646.)
    D. E. Ashmore, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DAVENPOBT, P. J.

In the information in this case, Cleo Ingram was charged with the crime of burglary in the second degree, alleged to have been committed in Seminole county on the 12th day of October, 1935. He was tried and found guilty by the jury and his punishment assessed at imprisonment in the state penitentiary for a term of two year's. From the judgment of the court, rendered in pursuance of the verdict, on the 19th day of May, 1936, an appeal was taken by filing in this court on November 17, 1936, a petition in error with case-made.

There has been presented to this court legal authority showing that the plaintiff in error has been granted a parole on August 9, 1937; that the said parole was signed and accepted on the 25th day of August, 1937, and filed1 in the Secretary of State’s office on August 30, 1937.

Where a plaintiff in error accepts a parole pending the determination of his appeal, he thereby waives the right to have his appeal determined, and, when the attention of this court shall be called judicially to the fact that a parole has been granted and accepted, his appeal will be dismissed. Baxter v. State, 24 Okla. Cr. 41, 215 Pac. 639.

It is therefore adjudged and ordered that the appeal herein be dismissed, and the cause remanded to the district court of Seminole county.

DOYLE and BAREFOOT, JJ., concur.


author: DAVENPORT, P. J.

text:
    J. B. BENTLEY et al. v. STATE.
    No. A-9236.
    Sept. 10, 1937.
    (71 Pac. 2d 644.)

      John Steele Batson, for plaintiffs in error.
    Mac. Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiffs in error, referred to in this opinion as the defendants, were jointly charged with Robert Allen, Effie Bentley, and Ethel Wooten, of the crime of conjoint robbery; were convicted, and the defendant J. B. Bentley sentenced to the penitentiary at McAlester for a term of 16 years, and the defendant Bill Wooten was sentenced to the state penitentiary for a term of 12 years. Both defendants have appealed from the judgment and sentence to this court.

The defendants J. B. Bentley and Bill Wooten argue in their brief that the evidence is insufficient to sustain the judgment. Without setting out the evidence in detail, the evidence though conflicting is sufficient to sustain the judgment. The weight of the evidence was a question for the jury and will nob be interfered with1 unless the verdict is clearly against the evidence or appears to have been influenced by passion or prejudice. Choate v. State, 37 Okla. Cr. 314, 258 Pac. 360; Mayse v. State, 38 Okla. Cr. 144, 259 Pac. 277; Pickett v. State, 35 Okla. Cr. 60, 248 Pac. 352; Clemmer v. State, 56 Okla. Cr. 354, 40 Pac. (2d) 37.

The first assignment of error of the defendants is that the court erred in its instruction to the jury in matters of law wherein the court, in instruction No. 12, instructed the jury in part as follows:

“If, you find the defendants, either one or all of them, guilty, as charged in the information in this case, it will be your duty to fix their punishment by imprisonment in the state penitentiary at any term not less than ten years (etc.).”

The defendants present their argument in support of their contention that the court, erred in its instruction No. 12, when it instructed the jury that it might find the defendants or either of them guilty, and if they did find! any of the defendants guilty they could impose a penalty upon them at any term in the state penitentiary not less than ten years. The defendants insist that under the law and the decisions of this court the minimum penalty for the crime charged against them is five years.

The information in this case in part charges :

“That J. B. Bentley, Bill Wooten, Robert Allen, Effie Bentley and Ethel Wooten, acting conjointly and together in the County and State aforesaid, on the day and year aforesaid, did willfully, wrongfully, unlawfully and felon-iously, make an assault in and upon one Elbert Gillis with a certain weapon, to wit: a revolver, then and thereby putting said Elbert Gillis in fear of immediate injury to his life and person, jby threatening to shoot the said Elbert Gillis, and did beat and bruise'him, the said Elbert Gillis with their fists and by hitting him over the head with a beer bottle and did then and there by use of said force and putting in fear as aforesaid, unlawfully, wrongfully, willfully and feloniously and against the will of him, the said Elbert Gillis, take, steal, and carry away from the possession and person of the said Elbert Gillis, certain personal property, to wit: six dollars in good and lawful currency of the United States of America arid one Elgin watch.”

Section 2549, O. S. 1931 (21 Okla, St. Ann. § 797), defines “robbery in the first degree” as follows:

“Robbery, when accomplished by use of force, or of putting the person robbed in fear of some immediate injury to his person, is robbery in the first degree. When accomplished in any other manner, it is robbery in the second degree.”

The defendants in this case were convicted of “conjoint robbery,” which is defined and the punishment provided for in section 2552, O. S. 1931 (21 Okla. St. Ann. § 800), as follows:

“Whenever two or more persons conjointly commit a robbery or where the whole number of persons conjointly commits a robbery and persons present and aiding such robbery amount to two or more, each and either of such persons is punishable by imprisonment in the penitentiary for not less than five years nor more than 50 years.”

Section 2543, O. S. 1931 (21 Okla. St. Ann. § 801), defines “robbery with firearms or a dangerous weapon,” as follows:

“Any person or persons who, with the use of firearms or any other dangerous weapons, attempts to rob or robs any person or persons, or who robs or attempts to rob any place of business, residence or banking institution or any other place inhabited or attended by any person or persons at any time, either day or night, shall be guilty of a felony, and, upon conviction therefor, shall suffer punishment by death, or imprisonment, at hard labor, in the state penitentiary, for a period of time of not less than five years, at the discretion of the court, or the jury trying the same.”

The foregoing sections of our statute have been set out in full for the reason it is clear from the charge in this case of conjoint robbery that the jury should have been advised by the court in its instruction that the minimum punishment for conjoint robbery was five years. The different sections of the statute were construed and interpreted by this court in Ridgway v. State, 54 Okla. Cr. 388, 22 Pac. (2d) 932, in which this court in the body of the opinion held that the Legislature fixed the punishment for conjoint robbery at imprisonment in the state penitentiary for not less than five nor more than fifty years.

It follows that the court’s instruction No. 12, in the part set out in this opinion, is erroneous, and that the judgment should be and is hereby modified by reducing the term of imprisonment of J. B. Bentley of 16 years to five years, and the sentence of Bill Wooten from a term of imprisonment of 12 years to a term of five years, and as modified the judgment is affirmed.

DOYLE and BAREFOOT, JJ., concur.


text:
    JOHN ROGERS v. STATE.
    No. A-9230.
    Sept. 10, 1937.
    (71 Pac. 2d 635.)
    D. E. Ashmore, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen.,, for the State.
   DAVENPORT, P. J.

In the information in this case, John Rogers was charged with the crime of burglary in the second degree, alleged to have been committed in ¡Seminole county on the 12th day of October, 1935. Upon his plea of guilty, the court assessed his punishment at imprisonment in the state penitentiary for a term of two years. Prom the judgment of the court on the 19th day of May, 1936, an appeal was taken by filing in this court on November 17, 1936, a petition in error with case-made.

There has been presented to this court legal authority showing that the plaintiff in error has been granted a parole on August 9, 1937; that the said parole was signed and accepted on the 19th day of August, 1937, and filed in the Secretary of State’s office on August 20, 1937.

Where a plaintiff in error accepts a parole pending the determination of his appeal, he thereby waives the right to have his appeal determined, and, when the attention of this court shall be called judicially to the fact that a parole has been granted and accepted, his appeal will be dismissed. Baxter v. State, 24 Okla. Cr. 41, 215 Pac. 639.

It is therefore adjudged and ordered that the appeal herein be dismissed, and the cause remanded to the district court of Seminole county.

DOYLE and BAREFOOT, JJ., concur.


text:
    JOHN FAY v. STATE.
    No. A-9257.
    Sept. 10, 1937.
    (71 Pac. 2d 768.)

      Kenneth B. Kienzle, for plaintiff in error.
    Mac Q.. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, for convenience referred to as the defendant, was convicted of assault with intent to kill, and was sentenced to serve a term of six months in the state penitentiary. Motion for a new trial was filed, considered, and overruled. The defendant saved the record and has appealed to this court.

The defendant was by information charged with an assault upon Genella Brewer, a school girl, by striking her with his car. J. P. Fisher, testifying for the state, stated:

“I was driving1 an oil truck in the same direction the defendant was driving; I estimated the defendant was driving at a speed of 75 or 80: miles an hour; just about a block and a half north of where he struck Genella Brewer he passed me; the defendant drove so fast I looked at my speedometer and saw I was driving 47 or 48 miles an hour; I had only time to look up when the defendant struck Genella Brewer.”

Roy Snelson, testifying for the state, stated in substance that defendant’s car stopped approximately 108 feet from where the defendant struck the child. The witness further stated one of the tires left a mark on the pavement estimated at 120 feet — by another witness at 75 steps. The witness Snelson stated that by the zigzagging of the defendant’s car he was having trouble in getting his car under control.

The defendant in his testimony claims before he got into the school zone he was driving about 35 or 40 miles an hour, and that on coming into the school zone he slowed down to about 35 miles an hour. The defendant' stated he did not see the child when he got into the school zone.

There is no dispute in the testimony that the defendant was driving at an unusual rate of speed in the school zone when he struck Genella Brewer, nor is there any dispute that the child was bruised and injured. Unless there is some error prejudicial to' the rights of the defendant and such an error as would warrant this court in reversing the case, the evidence is sufficient to sustain the verdict and judgment.

The defendant in his petition in error has assigned eleven errors alleged to have been committed by the trial court which he insists is sufficient to warrant this court in reversing his case. The only assignment of error we deem necessary to consider is assignment No. 10, which is:

“That the verdict of the jury sustained the defendant’s plea of former jeopardy and should have been sustained by a verdict of not guilty.”

Section 21, art. 2, of the Constitution of Oklahoma, is as follows:

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

Section 2678, O. S. 1931 (22 Okla. St. Ann. § 522), is as follows:

“When the defendant shall have been convicted or acquitted upon an indictment or information, the conviction or acquittal is a bar to another indictment or information for the offense charged in the former, or for an attempt to commit the same, or for an offense necessarily included! therein, of which he might have been convicted under that indictment or information.”

The information charged that on the 26th day of September, 1935, the said defendant did unlawfully, willfully, feloniously, wrongfully, and intentionally make an assault upon the person and body of the said Genella Brewer, with an automobile which he, the said John Fay, was then and! there driving upon the public highway, and with such force as was likely to> produce death, cut, strike, and! wound her, the said Genella Brewer, with the unlawful and felonious intent of him, the said John Fay, her, the said Geneila Brewer, to kill and murder.

The record discloses that before the trial began the defendant filed a plea of former jeopardy, and insists that this was the same offense as the one upon which he was formerly tried and convicted in No. 3749, in the district court of Okmulgee county, and which case is mentioned in the verdict of the jury as numbered and set forth above. The defendant in his brief refers to1 the case No. 3749, and leaves the impression that the trial of No. 3749 was for an assault upon Geneila Brewer. The record does not bear him out in this statement, for the reason that the record shows he was tried and convicted in No. 3749 of an assault upon Betty Joe Brewer and not Gen-ella Brewer.

The record further shows that the defendant was tried, convicted, and sentenced at the January, 1936, term of the district court of Okmulgee county, for the crime committed by him on Betty Joe Brewer. That he was tried and convicted at the July, 1936, term of the district court of Okmulgee county, for the crime committed on Geneila Brewer, the July term being a separate term of court from the January term. The defendant insists that his plea of former jeopardy should be sustained for the reason that the injury to Geneila Brewer occurred at the same time that Betty Joe Brewer was injured' by the defendant’s car, and the defendant further contends that the injury to Betty Joe Brewer and the injury to Geneila Brewer occurring practically at the same time and the same place were not separate crimes, but one act, and that his plea of former jeopardy should have been sustained.

The defendant in, hig brief admits that his conviction of injuring Betty Joe Brewer at the time of writing his brief was pending in the Criminal Court of Appeals. In view of the fact that the defendant’s conviction of injury to Betty Joe Brewer was pending in the Criminal Court of Appeals at the time he filed his plea of former jeopardy, the trial court properly overruled the same. While this court has never passed upon the question involved in this case, yet the State of Texas has had the direct question before it, and in the case of Sackhiem v. State, 92 Tex. Cr. R. 437, 244 S. W. 377, 24 A. L. R. 1072, in the first paragraph of the syllabus the court states the rule as follows:

“A conviction appealed from and appeal pending at the time of a subsequent prosecution and trial will not support a plea of former conviction.”

In the body of the opinion the court states:

“When the instant case was called for trial, appellant presented a plea of former conviction based on the facts we have above stated, and alleging that he had already been convicted for the same transaction and offense for which he was now being prosecuted. We do not consider or discuss the various bills of exception and the objections raised to the different phases of this question, as presented in the record before us, for the reason that a conviction appealed from and the appeal pending at the time of a subsequent prosecution and trial will not support a plea of former conviction, however just and pertinent the plea otherwise. Dupree v. State, 56 Tex. Cr. R. 562, 120 S. W. 871, 23 L. R. A. (N. S.) 596, 133 Am. St. Rep. 998; Harvey v. State, 57 Tex. Cr. R. 5, 121 S. W. 501, 136 Am. St. Rep. 971; Bosley v. State, 69 Tex. Cr. R. 100, 153 S. W. 878; Phillips v. State, 73 Tex. Cr. R. 317, 164 S. W. 1004.”

The court in the body of the opinion further says:

“It is indicated in these authorities that in such case one desiring to avail himself of a prior conviction as a bar to the instant prosecution should pursue a different course from the filing of a plea of former conviction when an appeal is pending.”

In People v. Brannon, 70 Cal. App. 225, 233 Pac. 88, in the third paragraph of the syllabus the court said:

“Where two or more persons are injured by a single criminal act, there are as many separate and distinct offenses as there were persons injured by the unlawful act, and as affecting the plea of former jeopardy it matters not whether a trial for one of such offenses resulted in a conviction or acquittal; there being no difference between pleas of 'autrefois convict’ and 'autrefois acquit.’ ”

In the case of State v. Fredlund, 273 N. W. 353, 357, decided by the Supreme Court of Minnesota, the prosecution in this case arose through an automobile collision, the two cars driven by the respective parties Mr. Busch and by the defendant. Mrs. Busch and her small son were killed. The grand jury returned an indictment against the defendant for the killing of Mrs. Busch, and also for the killing of the child; both indictments were the same in substance except as to the person killed; the same witnesses were produced before the grand jury and their names were indorsed upon the indictments. The defendant was tried and acquitted of the killing of Mrs. Busch. He was later convicted of the killing of the child, at which trial he entered a plea of former jeopardy, and the trial court certified the question to the iSupreme Court.

In State v. Fredlund, supra, the Supreme Court in the body of the opinion makes the following statement:

“Directly in point is People v. Majors, 65 Cal. 138, 3 Pac. 597, 52 Am. Rep. 295. The first syllabus paragraph, fully sustained by the opinion, reads: 'The murder of two persons by the same act, * * * conviction or acquittal in one case does not bar a prosecution in the other.’ ”

In State v. Fredlund, supra, in the body of the opinion the court said:

“We have attempted to' show that the better rule and that established by the great weight of respectable authority, is that the murder of two persons, even by the same act, constitutes two offenses, for each of which a separate prosecution will lie, and that a conviction or acquittal in one case does not bar a prosecution in the other.”

Citing a number of authorities to sustain the holding of the court. This case seems decisive of the question that where a party driving an automobile injures two or more persons he can be prosecuted for the injury of each of the individuals separately, and a conviction or acquittal for the injury of one of the parties will not bar the prosecution for the injury to the other parties.

12 Cyc. 282, § 4, is as follows:

“The Legislature may carve out of a single act or transaction several crimes, so that the individual may, at the same time and in the same transaction, commit Several distinct crimes, in which case an 'acquittal or a conviction of one will not be a bar to an indictment for the other.”

In Orcutt v. State, 52 Okla. Cr. 217, 3 Pac. (2d) 912, this court in the first paragraph of the syllabus stated:

“Bobbing different individuals riding in the same automobile in rapid succession constitutes a distinct offense for each individual, and a conviction or acquittal for robbing one is no bar to a prosecution for robbing others'.”

While the authorities are not in harmony on the question involved in this case, we hold that the greater weight of respectable authorities sustains the contention of the state that, notwithstanding the fact that the injury of the Brewer girls was caused by the car of the defendant striking them at or near the same time and place, the injury to each of the girls constitutes a separate offense, and that the contention of the defendant that he could not be put on trial for the injury to Geuella Brewer, after he had been tried and convicted and his case pending in the Criminal Court of Appeals for the injury of Betty Joe Brewer, is without merit. This court holds that where two or more persons are injured by a single criminal act, there are as many separate and distinct offenses as there are persons injured by the unlawful act.

The evidence in this case is amply sufficient to sustain the conviction. There are no fundamental or prejudicial errors in the record warranting this court in reversing the case. The instructions of the court in their entirety correctly advised the jury as to the law applicable to the facts.

The judgment of the trial court is affirmed.

BOYLE and BAREFOOT, JJ., concur.


text:
    JOHN FAY v. STATE.
    No. A-9205.
    Sept. 10, 1937.
    (71 Pac. 2d 771.)

      Kenneth B. Kienzle, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

This is an attempted appeal from the district court of Okmulgee county, Okla., rendered on verdict and judgment finding the defendant, John Fay, guilty of assault with intent to kill and murder, and fixing his punishment at six months in the state penitentiary.

The Attorney General has filed a motion to dismiss the appeal on the ground that no' notices of appeal were served on the county attorney or court clerk, and no summons in error was issued and served upon the Attorney General or the same waived.

An examination of the record shows that the motion to dismiss is well taken. In the case of Kirk v. State, 21 Okla. Cr. 34, 204 Pac. 465, this court held that where appellant within the time for taking an appeal served no notices of appeal upon the court clerk or county attorney as provided in section 5992, Rev. Laws 1910 (now section 3193, O. S. 1931 [22 Okla. St. Ann. § 1055]), and no summons in error was issued and served on the Attorney General, nor any general appearance entered by him, the Criminal Court of Appeals has no- jurisdiction to entertain the appeal on its merits and will dismiss it.

For the reasons stated, the motion of the Attorney General to dismiss the appeal is sustained, and the appeal is dismissed.

DOYLE and BAREFOOT, JJ., concur.


text:
    AUSBERRY BLANKENSHIP v. STATE.
    No. A-9137.
    Sept. 17, 1937.
    (71 Pac. 2d 772.)
    O. E. Brewer, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, in this opinion referred to as the defendant, was by information jointly charged with Samuel Blankenship of the crime of murder in taking the life of one Clay D. Dickson, wasl tried separately, convicted of manslaughter in the first degree, and sentenced to serve a term of imprisonment in the state penitentiary of four years. Prom which judgment and sentence the defendant by transcript has appealed to this court.

The defendant as grounds for reversal of his case alleges that the court committed nine errors. All of the errors assigned by the defendant are included in his ninth assignment of error, and that is: “The court erred in overruling his motion for a new trial.”

The transcript of the record contains the instructions of the court, a copy of the information, a copy of the judgment and sentence of the court.

The information states facts sufficient to advise the jury of the charge against him, and to advise the defendant of the witnesses that would be used against him in the trial of his case. The verdict is in regular form. The judgment and sentence is regular.

The court cannot go into the question of many of the assignments of the defendant for the reason that the transcript does not contain a copy of the evidence.

A careful examination of the transcript discloses that the defendant was regularly charged with the crime of murder jointly with Samuel Blankenship; was tried separately, and convicted of manslaughter in the first degree. The trial court had jurisdiction of the defendant and the subject-matter.

There being no fundamental or prejudicial errors, shown by the transcript, the judgment of the trial court is affirmed.

DOYLE and BAREFOOT, JJ., concur.


text:
    JOHNIE RAAB v. STATE.
    No. A-9178.
    Sept. 10, 1937.
    (71 Pac. 2d 773.)

      Cornelius Hardy, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and W. D. French, Co1. Atty., for the State.
   BAREFOOT, J.

The defendant was charged with the crime of manslaughter in the first degree, was tried and convicted of manslaughter in the second degree, and sentenced to serve a term of two years in the penitentiary, and has properly appealed to 'this court.

From the conclusion we have reached it Avill only be necessary to consider two of the many errors urged for reversal. In the consideration of these errors it will be unnecessary to review the evidence. When all of the testimony had been received, the instructions of the court given to the jury, argument of counsel, and the case finally submitted to the jury for its consideration, they were told by tbe court that if they reached a verdict it might be signed and sealed and delivered to the bailiff and that they could then separate if they so desired. This was on the evening of the 20th day of March, 1936. The trial court, while the jury was thus deliberating, left Johnston county and went to his home in Marietta, Love county. The record does not show for what purpose the trial court left Johnston county and went to Love county. This court will, however, take judicial knowledge that Johnston and Love counties are in the same judicial district. The record discloses that on the 21st day of March the trial judge received a telephone call while he was in Marietta, Love county, from the foreman of the jury in' Johnston county, and the record reveals the following proceedings with reference thereto:

“By the Court: You are hung up, are you, Mr. Pen-ner? Mr. Penner: Yes, sir, on some matters we are. By the Court: Give me the numbers, not how you stand, as to how many is for conviction or acquittal, if any, just the division only. Mr. Penner: It is not on conviction or acquittal. By the Court: If it is on the question of punishment you are hung up on, go back to your jury room and labor some more, I will be over there some time this afternoon; that is a question you must settle among yourselves.”

It is further disclosed that in the motion for new trial and the motion in arrest of judgment filed by the defendant no reference is made as to the errors above mentioned, and the question is raised for the first time in this court. But the record does include what transpired as above stated. Thus the two questions are raised:

First, was the action of the court in leaving John- . ston county after the case had been finally submitted to the jury, error?

And, second, was the conversation between the foreman of the jury and the court, over the telephone, when neither the defendant nor his counsel were present amt not notified thereof, such error as tO' justify a reversal of this case?

The state, in its brief, says:

“We do not consider it necessary to discuss the cases cited in support of defendant’s contention, or the other decisions of this court, because none of them are in point upon this question. In fact, we have been able to find only two cases in the United States which are in point. Both cases are from Georgia.”

We shall refer to these cases later in this opinion. We think that two cases which have been decided by this, court, and one from the territorial court, are strongly in point upon the issues involved and are practically decisive thereof. They are: In re Patswald, 5 Okla. 789, 50 Pac. 139, 143; Ex parte Mingle, 2 Okla. Cr. 708, 104 Pac. 68, 71; and Allen v. State, 13 Okla. Cr. 533, 165 Pac. 745, 746, L. R, A. 1917A, 1085.

In the Patswald Case, the defendant was tried in the district court of Oklahoma county, and after the case was closed and the jury was deliberating upon its verdict the trial court left Oklahoma county and went to Cleveland county and held an adjourned term of court there, and returned to Oklahoma county two days later and received the verdict of the jury in the case which was pending in that court. Judge Tarsney of the territorial court held that by reason of the trial judge leaving the county while the jury was deliberating upon their verdict terminated the case by operation of law, and that in his absence the jury had no authority to consider the case, and that the jurisdiction of the court having been suspended could not be resumed by tbe return of the judge, and that the verdict returned and the judgment rendered therein were coram non judice and void. It will be noted that the court took judicial knowledge that Oklahoma and Cleveland counties were in the same judicial district. The only difference between the above case and the case at bar is that an adjourned term of court was opened for two days in Cleveland county in the Patswald Case, and the record here does not reveal the reason for the court going to Marietta, Love county, from the seat of the trial in Johnston county. The court, in a very full discussion of this case, said:

“No person can be lawfully deprived of his liberty except ‘by due process of law.’ Due process of law would in this case imply, upon a conviction by a court of competent jurisdiction. A court of competent jurisdiction for the trial of the crime of perjury consists of a presiding judge and jury. It is not a court unless there be both judge and jury. It is the very existence and vitality of the court which authorizes the jury to deliberate. It is the existence and authority of the court which keeps them together, and that existence and authority must continue from the time they are impaneled until they are discharged. Barrett v. State, 1 Wis. 175. For all general purposes, the court is considered as in session from the commencement until the close of its term. The jurors, officers, and parties are all under its direction. The functions of the court cannot be suspended, and the functions of the jury continue. To hold the contrary would be to throw off all those salutary restraints which have been found necessary to the due and solemn administration of justice. The jury are under the control and protection of the court. A juror may be punished for misconduct as for contempt. If an officer having charge of a jury should desert his post, or tamper with the jury, he would 'be punishable as for contempt. If the room in which the jury are deliberating be surrounded by rioters or tumultuous persons, for the purpose of influencing their deliberations or interrupting their discussions, such persons would be punishable for contempt of eourt. The jury may, while deliberating, properly require of the court additional instructions as to the law of the case, or require of the court explanation of the meaning of the instructions given. They may, in the presence of the court, and by permission of the court, have their memories refreshed as to the testimony in the case. All these privileges and safeguards are in great measure for the protection of the rights of the defendant, and nothing but the existence and presence of the court during every part of the proceedings of his trial can insure them to him. The rioter, the juror, or the officer could not be punished for contempt if there was no court in existence when their acts of misconduct were committed; and the jury could not have the benefit of additional instruction or refreshment of memory as to evidence if there was no court at the time in actual existence to assist them. The presence, actual or constructive, of a judge at every stage of the proceedings in a court, is necessary, or the proceedings will be coram non judice. The law requires his presence during each and every step. Meredeth v. People, 84 Ill. 479; O’Brien v. People [17 Colo. 561] 31 Pac. 230.
“We concede the correctness of the proposition of counsel That a judge has power to adjourn his court from time to time, and nothing that he does in the interval can have the effect of depriving him of the power of holding his court when the recess expires.’ That proposition is not involved here. It is not necessary to review authorities to show that Judge Scott, when he returned to Oklahoma City on December 26th, might have resumed business and taken up any other matters then pending in his court. We concede this and we concede that the presiding judge need not sit at his bench or remain in a court room while a jury are deliberating on a verdict. He may malee a recess, or adjourn as to all other business from day to day or for rest or refreshment, but he cannot suspend the functions of the court as to the case of which the jury are deliberating. He need not remain actually on the bench or in the court room, but he must remain where he may exercise his functions as a court; that is, at the place where the court is by law required to be held. He cannot be at another place, or engage in other business which precludes the exercise of such functions.
“Section 5242 of our statutes (Stat. 1893 [22 Okla. St. Ann. § 898]) provides: ‘While the jury are absent the court may adjourn from time to time as to other business, but it is nevertheless deemed open for every purpose connected with the cause submitted to them, until a verdict is rendered or the jury -discharged.’
“The court cannot be adjourned.or its functions suspended, as to the cause submitted to the jury. It is constructively open even though the judge be resting or refreshing himself; but, to be constructively open, the judge must be at the place where the law requires it to be kept open. If the judge should die after a cause was submitted to a jury, we do not think a verdict could be returned by the jury after a successor had been appointed, and assumed the functions of the court. The death of the judge would render the jury, as to the cause, functus officio; and absence from the place where by law the court, is required to be held, or other cause which dissolved the organization of the court, or suspended or prevented the exercise of its functions, would have the same effect as the death of the judge. The termination of the court by operation of law destroys the power of the jury to exist as a part of the court, and discharges the jury. State v. Jeffors, 64 Mo. 376. With the termination of the court the jury is discharged by operation of law, and it can then neither make nor return a verdict. Anderson v. Hulet [4 Colo. App. 448] 36 Pac. 309.”

In the Mingle Case, supra, the defendant was being tried in Oklahoma county and the trial judge, who lived in Canadian county, during the progress of the trial and after adjourning court each evening, went to his home in Canadian county. Judge Doyle held that this was proper and was not error, but the agreed statement of facts in this case not only shows that there was no session of court in Canadian county during the progress of this trial, but during the entire time the jury was deliberating in the above-cited case the judge of the district court was present and could have been reached by the jury at any time they desired his presence. And the court in its opinion says:

“The fact that the trial judge visited his home within the district during adjournments prior to the final submission of the case to the jury could in no way affect the legality of the proceedings. The presence of the trial judge was not essential during the adjournments.”

It will thus be seen that the court based his opinion upon the fact that the judge was away only “prior to the final submission of the case to the jury,” and further quotes freely from the Patswald Case, and says: “The holding of the Territorial Supreme Court in that case meets the approval of this court.” He then draws the distinction that under1 the terms of the State Constitution two judges have the right to sit in any district separately at the same time, but clearly draws the distinction that a judge does not have the right to leave the county after the case has been finally submitted to the jury.

In the Allen Case, supra,, the opinion was also written by Judge Doyle. In this case the defendant was being tried for murder in Payne county. Immediately after1 the case was finally submitted to the jury, the trial judge became seriously ill and, by agreement of counsel on both sides, returned to his home in Logan county. It wasi agreed and consented to by attorneys on both sides that Robert A. Lowery, an attorney at the bar in Payne county, should act as special judge for the purpose of receiving the verdict of the jury. On the following morning the jury came into court with their verdict and the same was received by Mr. LoweTy and delivered to the court clerk as agreed. In reversing this case, the court says:

“Under these provisions, after the retirement of the jury to deliberate and until a verdict is rendered, or the jury discharged in due course of the law, it is the duty of the presiding judge to be where he can respond to any call for the exercise of his judicial authority, and thus give protection and security to all parties interested or concerned in the result of the trial, and such judge cannot delegate these judicial functions to another, even with the consent of the parties. It is well settled that in prosecutions for felonies the continual presence of the judge during the entire course of the trial is indispensable, and that whether objection be or be not made, a conviction will be reversed in the case of his improper absence.” Meredeth v. People, 84 Ill. 479, 2 Am. Cr. Rep. 448; Ellerbe v. State, 75 Miss. 522, 22 So. 950, 41 L. R. A. 569.

The cases cited in the brief of the state from the State of Georgia are Martin v. State, 10 Ga. App. 455, 73 S. E. 686, and Malcolm Bros. v. Pollock, 181 Ga. 687, 183 S. E. 917, 922. It is contended by the state that the Martin Case cannot be considered as an authority in view of the later decision of Malcolm Bros. v. Pollock. We have carefully read each of these decisions. The Martin Case is a criminal case. The facts are practically identical with the case at bar. The judge went to an adjoining county after the case was finally submitted to the jury, for the purpose of granting a charter to some company. The court, in this opinion, said:

“It is not apparent that the defendant in the present case was hurt by the absence of the judge. The testimony adduced on the trial fully authorized the conviction of the defendant, and there is no evidence that the verdict was affected by any improper influence or contract onj the part of bystanders or others, or that they knew that the judge was absent from the county, or that their finding was in any way affected by that fact. It is naturally suggested that the-trial bad progressed so far that the presence of the judge was no longer necessary until tbe jury might return into court, and that, as it was not necessary that the judge should remain at the courthouse until he was notified that the jury desired to return a verdict, it could not matter if, in the judge’s desire to perform other duties of importance in an adjoining county, he should go there, instead of remaining at his hotel or some other house, within reach of the jury. It was no doubt upon the latter theory that the learned trial judge acted, and the recital of the assignment of error evidences his diligence in the discharge of his judicial duties.
“However, as a criminal trial is not completed until the verdict has been rendered, the question which really arises is whether it is not necessary, in order to preserve unimpaired the right of trial by jury, that injury 'be presumed from the violation of any of those orderly rules which safeguard the right. It seems to us that injury is to be presumed, in so important a matter as trial by jury, even in the absence of proof to that effect, where injury is likely to result from an infraction of a general rule, and especially such an important one as that which looks to the present personal supervision and control of the presiding judge as an essential sine qua non of a legal trial. There can be no trial without a judge. The case must be tried in Decatur county. Naturally we conclude that when the judge left Decatur county, and went to Grady county to open a special court to grant a charter in that county, the court ceased, for the time being at least, to exist in Decatur county, and that all that was done during the absence of the judge was nugatory and void. A temporary absence of the judge, such as has been referred to in the cases cited above, involved his presence at a point where he was easily accessible to the parties, counsel, officers of court, and the jury. Where the judge is within call of the jury and physically absent, but at a place so near by that he can easily return, if needed, he may be presumed to be constructively present at the court-bouse; but this presumption cannot be indulged when the judge goes to a place beyond the jurisdiction of the court in which the trial is being had. Where the judge is not only physically out of the presence of the jury, but also absent in a legal sense, and at such a point as to be beyond the reach of the other essential component, but subordinate parts of the court, which should be subjected to his supervision, the court is necessarily dissolved pro tem-pore, at least so far as the trial first pending is concerned.”

The case of Malcolm Bros. v. Pollock was a civil case. Counsel for. both the plaintiff and defendant agreed not only for the judge to leave the county after the case had been finally submitted to the jury, but consented that they might seal their verdict and turn it over to the sheriff, and on the following morning the sheriff having been handed the verdict by the jury, passed the same to the court clerk, and it was never received in open court by the judge. Under this state of facts the Supreme Court of Georgia held, in answering two questions certified to them from the Court of Appeals, that the fact that the judge went into an adjoining county after the case had been submitted to the jury did not vitiate the verdict. The reasons given in the opinion are based mostly upon expediency, and a statute ( Code Ga. 1933, § 110-107) which provides:

“Verdicts shall be received only in open court, in the absence of agreement of the parties.”

And the court says this section is specific authority for receiving verdicts by agreement otherwise than in open court. The court then holds that the fact that the judge went into an adjoining county while the jury were deliberating was not error where no prejudice was shown, but as in every decision we have read, the practice was condemned. It may also be noted that in this case there was a strong written dissenting opinion by the Chief Justice and concurred in ‘by one of the six judges of the Supreme Court of Georgia. Chief Justice Russell in his dissenting opinion says:

“I have always adopted as my view on this subject that portion of the opinion in the Horne Case [Horne v. Rogers, 110 Ga. 362, 35 S. E. 715, 49 L. R. A. 176], that we should hold that the presence of the judge at all stages of the trial is absolutely necessary to its validity, and that the absence of the judge from the trial without suspending the same, for any length of time, noi matter how short, or for any purpose, however urgent, would vitiate the whole proceeding, whether objection was made by the parties interested or not, and whether injury resulted to any one or not. The judge is such a necessary part of the court that his absence destroys the existence of the tribunal, and public policy demands that the tribunal authorized to pass upon the life, liberty, and property of the citizens should be constituted (during the entire trial in the manner prescribed by law. The great weight of authority is in harmony with this view.”

The second question presented has in different forms been before this court many times. Among the leading cases in which this question has been considered are: Ridley v. State, 5 Okla. Cr. 522, 523, 115 Pac. 628, 629; Watson v. State, 7 Okla. Cr. 508, 124 Pac. 329, 330; Selstrom v. State, 7 Okla. Cr. 345, 123 Pac. 557, 559; Thomas v. State, 13 Okla. Cr. 414, 164 Pac. 995; Henderson v. State, 18 Okla. Cr. 611, 197 Pac. 720; Montgomery v. State, 19 Okla. Cr. 224, 199 Pac. 222; Walter v. State, 29 Okla. Cr. 221, 233 Pac. 240; Bennett v. State, 42 Okla. Cr. 264, 275 Pac. 390; Grable v. State, 60 Okla. Cr. 339, 44 Pac. (2d) 152. The decisions in the Ridley and the Watson Cases have often been followed by this court and we think state the law as it should be. The Montgomery Case approves the doctrine announced in those cases and con-dernns the statement of the trial court but affirms the decision. We think the statement made in that case should not have been made and probably resulted in a verdict of guilty. The decision in the Walter Case referred to the Ridley and Watson Cases but does not follow them, holding that the harmless error doctrine which was enactedi by the Legislature of this state after the decisions in those cases should be applied, and the case was affirmed for this reason. We do not approve of the doctrine announced in the Walter Case, and the same, so far as it conflicts with this decision, is overruled. The other cases above cited follow the rule announced in the Ridley and Watson Cases. In the Ridley Case the court says:

“The eleventh assignment alleges misconduct of the jury and clerk of the county court, as set forth by affidavits in support of the motion for a new trial, which are not controverted. It appears from said affidavits that while the jury were deliberating upon the verdict some member of the jury knocked on the door of the jury room, and when it was opened a member of the .jury spoke to T. B. Wilkinson, the clerk of the court, and said,i ‘Five of us agree; do we have to sign it?’ and said clerk answered, and said, ‘The five that had agreed, had to sign it.’ That théreupon the door to said jury room was closed, and after a short while the jury returned into court with a verdict signed by five jurors.
“Our statutes provide (section 6858, Snyder’s St. [Okla. St. 1931, section 3085; 22 Okla. St. Ann., section 857]): ‘After hearing the charge, the jury may either decide in court, or may retire for deliberation. If they do not agree without retiring, one or more officers must be sworn to keep them together in some 'private and convenient place, without food or drink, except bread and water, unless otherwise ordered by the court, and not to permit any person to speak to or communicate with them, nor do so themselves, unless it be by order of the court, or to ask them whether they have agreed upon a verdict, and to return them into court when they have so agreed, or when ordered by the court.’
“And (section 6865, Snyder’s St. [Okla. St. 1931, section 3085; 22 Okla. St. Ann., section 894]) : ‘After the jury have retired for deliberation, if there be a disagreement between them as to any part of the testimony, or if they desire to be informed on a point of law arising in the cause, they must require the officer to conduct them into ■court. Upon their being brought into court, the information required must be given in the presence of, or after notice to the county attorney and the defendant or his counsel, or after they have been called.’
“The question presented is whether such misconduct is sufficient to require the court to set the verdict aside and grant a new trial. It is of the utmost importance that jurors and court officials should be held to a strict observance of the provisions of law prescribing their procedure and duties, and their conduct should be such that no possible suspicion can attach to them of having acted in a manner prejudicial to the accused, or in his favor. If there was a disagreement between them, or if they were doubtful as to how they should proceed, they should have required the officer in charge to conduct them into court, and the necessary information would be given by the court in the presence of the parties. It will be presumed, in the absence of anything, to the contrary, that the rights of the defendant were prejudiced by the action of the jury and clerk of the court in disregarding and failing to observe the requirements of the statute. Courts cannot be too strict in compelling a rigid and vigilant observance of the provisions of the statutes designed to preserve inviolate the right of trial by jury and the purity of jury trials. We deem it unnecessary to consider the other assignments.”

In the Watson Case, the Attorney General filed a confession of error. The court, after quoting from the Rid-ley Case and approving the same, said:

“We think that the confession of error filed by the Attorney General should be sustained. The case illustrates the fact that the wisest and best judge, when acting on the spur of the moment during a trial, sometimes makes a mistake. The judgment of the lower court is reversed, and the cause is remanded for a new trial.”

Not only do the Oklahoma, cases uphold this doctrine, but the generally accepted view is that it is reversible error for the trial judge in a criminal case to communicate with the jury or any member thereof, except in open court and in the presence of the. defendant and his counsel; the basis of such ruling being, that the accused shall have the right of a public trial and the right to be present during all stages thereof. There are some decisions which hold that it is necessary to show prejudicial error, but many of these cases are civil cases, and many of them are based upon peculiar statutes different from what we have in Oklahoma. The oldest and one relied upon by many authorities in establishing this principle was the case of Sargent v. Roberts, 1 Pick. (Mass.) 337, 11 Am. Dec. 185. The court says:

“And we are all of opinion, after considering the question maturely, that no communication whatever ought to take place between the judge and the jury, after the cause has been committed to them by the charge of the judge, unless in open court, and, where practicable, in presence of the counsel in the cause. The oath administered to the officer seems to indicate this as the proper course: ‘He is to suffer no person to speak to them, nor to speak to them himself unless to ask them whether they are agreed’; and he is not to suffer them to separate until they are agreed, unless by order of court. When the court is adjourned, the judge carries no power with him to his lodgings, and has no more authority over the jury than any other person; and any direction to them from him, either verbal or in writing, is improper.
“It is not sufficient to say that this power is in hands highly responsible for the proper exercise of it; the only sure way to prevent all jealousies and suspicions, is to consider the judge as having no control whatever over the case, except in open court in presence of the parties and their counsel. The public interest requires that litigating parties should have nothing to complain of or suspect in the administration of justice, and the convenience of jurors is of small consideration compared with this great object. If by reason of the long intervals between the sessions of the court, jurors here are subjected to inconveniences which do not exist elsewhere, this must be remedied by holding two sessions a day instead of one. It is better that everybody should suffer inconvenience, than that a practice should be continued which is capable of abuse, or at least of being the ground of uneasiness and jealousy.”

In the case of Little v. U. S., 73 F. (2d) 861, 864, 96 A. L. R. 889, Judge McDermott, of the Tenth Circuit Court of Appeals, says :

“But sending a stenographer into the jury room, there to read, in the absence of the defendant and his counsel, the charge of the court, stands in very different stead. No harm may come from it, it is true; but on the other hand, a mistake in the reading of a shorthand symbol which defense counsel would instantly detect, an uncon-cious or deliberate emphasis or lack of it, an innocent attempt to explain the meaning of a word or a phrase, and many other events which might readily occur, would result' in irremediable prejudice to the defendant. Underneath that phase of it lies the proposition that no one should be with a jury while it is engaged in its deliberations. The jury system is founded upon the proposition that disinterested jurors will hear the evidence in open court, and upon that evidence and that alone, deliberate among themselves until a verdict is reached. Southern Pacific Co. v. Klinge (C. C. A. 10) 65 F. (2d) 85, certiorari denied 290 U. S. 657, 54 S. Ct. 72, 78 L. Ed. 569. To permit various persons, under one pretext or another, to be with the jury in its deliberations is to open the door to grave abuse and to strike directly at the heart of the system. Without exception, as far as we are advised, such procedure has been held to be error. * * * Nor should there be any communication between the court and the jury except in open court. Fillippon v. Albion Vein Slate Co., 250 U. S. 76, 81, 39 S. Ct. 435, 63 L. Ed. 853; Dodge v. United States (C. C. A. 2) 258 F. 300; Sargent v. Roberts, 1 Pick. (Mass.) 337, 11 Am. Dec. 185; Moseley v. Washburn, 165 Mass. 417, 43 N. E. 182; Whitney v. Commonwealth, 190 Mass. 31, 77 N. E. 516; State v. Costales, 37 N. M. 115, 19 Pac. (2d) 189; Buntin v. Danville, 93 Va. 200, 24 S. E. 830.
“The District Attorney very properly concedes the rule to be so. His answer is that the error does not require a reversal and directs attention to the cases last cited, in some of which it was held that where the communication was in writing and unchallenged, a judgment need not be reversed if it affirmatively appears that the communication was harmless. But where an outsider is present in the jury room during its deliberations, a different situation is presented. What went on cannot be determined by examining an undisputed writing, but can only be ascertained by exploring the deliberations of the jury room, a procedure adopted only in extreme cases and then reluctantly.”

In the case of State v. Wroth, 15 Wash. 621, 47 Pac. 106, 107, the court says:

“It is contended by the appellant’s counsel that this constituted such misconduct on the part of the trial judge as requires a reversal, and we think the contention must be sustained. In the discharge of his official duty, the place for the judge is on the bench. As to him, the lawt has closed the portals of the jury room, and he may not enter. ,The appellant was not obliged to follow the judge to the jury room in order to protect his legal rights, or to see that the jury was not influenced by the presence of the judge; and the state cannot be permitted to show what occurred between the judge and the jury at a place where the judge had no right to be, and in regard to which no official record could be made.
“But learned counsel for the state insist that the judge said nothing to the jury, and hence his conduct could not have been prejudicial to the defendant. But the law does not subject parties litigant to the disadvantage of being required to accept the statement of even the judge as to what occurs between himself and the jury at a place where the judge has no' right to be, and where litigants cannot be required to attend. It is the lawful right of a party to have his cause tried in open court, with opportunity to be present and heard in respect to everything transacted. It is his right to be present and attended by counsel whenever it is found necessary or desirable for the court to communicate with the jury, and he is not required to depend upon the memory or sense of fairness of the judge as to what occurs between the judge and jury at any time or place when he has m> lawful right to be present. His right in this respect goes) to the very substance of trial by jury. Aside from the rights of the parties, public policy will not sanction any departure from the rule which requires that all such communications shall be public, and in the presence of the parties or their counsel.”

In the case of Osborne v. State, 93 Tex. Cr. R. 54, 245 S. W. 928, 931, the court says:

“And it may be added that in no event should the trial judge enter the room in which the jury is engaged in their deliberations for the purpose of discussing the charge or any phase of the case or permitting any of the members of the jury to do so. To the jury, not only the language of the judge trying the case, but his manner, is of peculiar weight, and they may place upon it interpretations not intended. The instant case is one of felony, and it is manifest that such conversation as took place between the judge and the members of the jury while he was in the jury room was not in the presence of the accused. Such statements as were made to the jury were verbal, a method of instruction which the statute forbids.”

In the majority of cases it is held that it is not necessary for the defendant to show that he has been prejudiced by the action of the trial court. In the case of Crabtree v. Hagenbaugh, 23 Ill. 289, 76 Am. Dec. 694, the reason for the rale is announced:

“If, in this case, no harm was actually done, and for that reason the verdict is allowed to stand, we open the door to the inquiry in all such cases, as to whether the party has been injured by the interview. .Such an inquiry should not be tolerated. The policy of the law requires that all the proceedings of the court should be open and; notorious, and in the presence of the party, so that if he is not satisfied with it, he may take exceptions to it, in the mode pointed out by law, and not be put to extraneous proof to show that an error has been committed in a sacred proceeding, and, in fact, out of court-.” Coolman v. State, 163 Ind. 503, 72 N. E. 568; Wacaster v. State, 172 Ark. 983, 291 S. W. 85; Crabtree v. Hagenbaugh, 23 Ill. 289, 76 Am. Dec. 694; State v. Duvel, 134 A. 283, 4 N. J. Misc. 719; Id., 103 N. J. Law 715, 137 A. 718.

It is useless to cite further authorities to support this proposition. In 17 L. R. A. (N. S.) 609, 22 A. L. R. 261, 62 A. L. R. 1468, and 96 A. L. R. 899, are notes covering every phase of this case and substantiate the statement that the great weight of authority especially in criminal cases supports the principle here announced. The rule is also announced in 38 Cyc. 1859 and in 64 C. J. 1037, and also in 16 Ruling Case Law, pp. 298 and 299.

We realize that this opinion has been extended, but we also recognize that the two questions discussed are extremely important to the practice of criminal law in this state; important to the trial court and the defendant. We know that judges live in counties joining other counties in their judicial district; that with modern roads and by means of automobiles they can, within a short time, be in the county where a case is tried even though they are out of the county; and that it would be much more convenient for them to spend the time while the jury is deliberating, at their own home, or in attending to necessary business in an adjoining county seat. But we also realize that with their election to the position of judges there also come duties and responsibilities, duties which they owe to the defendant on trial, and as we consider it, one of the greatest duties and responsibilities is the right of the defendant to have the judge before whom he is tried personally -present to meet any emergency that may arise during the deliberation of his case. Often information is desired by the jury, testimony to be read, or additional instructions to be given. If the judge is not personally present, the jury may, in order not to inconvenience its own members, or not to inconvenience the judge who is away in another county, decide that it will not have the testimony read, or the question asked, or the instruction explained; thus the right of the party being tried will not be fully protected as the law contemplates. We fully realize that there may be times when this rule will result in hardships and inconveniences, especially to the trial judge; but we know they will gladly meet it, for they will be anxious that he who is tried before them, even though he be guilty, may always have the knowledge that during his trial both his rights and that of the state were equally protected by a considerate judge, who was personally present during every important stage of its proceedings and especially while the jury was deliberating his fate.

The record in this case reveals that the trial judge, after submitting the case to the jury, had left Johnston county and had gone to Marietta, in Love county. The next day he was called by the foreman of the jury over the telephone. The record does not reveal where the foreman of the jury was when this conversation took place, but it is very reasonable to presume that there was no telephone in the jury room and in all probability it was necessary for the foreman of the jury to go to some place in order to talk over the telephone. This would probably have necessitated his separation from the jury during this time. The record does not probably disclose all of the conversation between the parties. Jurors are very eager to know what the judge’s opinion of the case is and a very little move or indication from him is of tremendous influence. This is the very reason for the rule that any communication by him with the jury while deliberating should be in open court where the defendant and his counsel may be present to protect their rights. The verdict of the jury should1 not only be decided by the strictest observance of all the well-ordered rules of procedure, but it should be above and beyond suspicion. Of all things most sacred in judicial proceedings, the sanctity of the verdict should be inviolate. This high test is demanded by the statutes of this state above quoted.

It becomes unnecessary for us to pass upon other errors assigned, and for the reasons above stated, the judgment rendered by the district court of Johnston county is reversed.

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