author: BAREFOOT, J.

text:
    WALLACE BRADLEY v. STATE.
    No. A-9064.
    Dec. 2, 1937.
    (74 P. 2d 126.)

      C. B. Leedy, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Cbas. B. Leedy, Co. Atty., for tbe State.
   BAREFOOT, J.

Tbe defendant was charged jointly with Lee Kratz by information with tbe crime of forgery. They were tried, Lee Kratz was acquitted, and tbe defendant was convicted and sentenced to serve a term of 3 years in the reformatory at Granite, and has appealed.

The evidence reveals that the defendant was married, was 27 years of age, and bad three children; that be was tbe son of Mrs. Nellie Bradley of Harmon, Obla.; that his father, Joe Bradley, died in November, 1932, without a will, leaving property consisting of 640 acres of land to his children and 320 acres to his wife. All of this property had been turned over to the mother, Mrs. Nellie Bradley, by her children, including the defendant, and she had the exclusive management and revenue from the same. The defendant had, since the death of his father, upon numerous occasions, written checks upon the Farmers & Merchants Bank at Arnett, Okla., where his mother kept her bank account. Sometimes he would sign her name, “Nellie Bradley,” and at other times would sign the name, “Nellie Bradley by Wallace Bradley.” The bank did not pay these checks, but his mother had always taken them up, sometimes by paying tbean at the bank and sometimes by giving her check to the parties to whom the checks were made payable. On the 22d day of June, 1935, the defendant went to a filling station, in company with Lee Kratz and his wife, Pearl Kratz, in the town of Shattuck, Ellis county, Okla., procured a blank check of the Farmers & Merchants Bank of Arnett, and filled it out for $500 and signed his mother’s name, “Nellie Bradley,” to the check. Soon thereafter he cashed this check at the Shattuck National Bank, and was paid $250 cash thereon and given a cashier’s check for $250 additional. On the same day he and Lee Kratz and Pearl Kratz drove to the town of Gage, Ellis county, and there at the bank he cashed and received $250 upon the cashier’s check which he had previously received a,t Shattuck. He, in company with Lee Kratz and his wife, immediately left for Oklahoma City, ostensibly for the purpose of buying polo ponies, and in which Lee Kratz was to assist him. The evidence further reveals that instead of buying polo ponies all the money was spent in a few weeks having a gay time in Oklahoma City and other places.

The evidence of Mrs. Nellie Bradley, the mother of defendant, which was relied upon by the state to sustain the charge of forgery against the defendant, was as follows :

“Q. Please state your name to the court and jury. A. Mrs. Nellie Bradley. Q. Are you the mother of Wallace Bradley? A. Yes, sir. Q. Where do¡ you live, Mrs. Bradley? A. At Harmon. Q. I will ask the reporter to mark this instrument state’s exhibit No. 1. Now I hand yon state exhibit No. 1, Mrs. Bradley, which has been marked for identification as state’s exhibit No.l, and ask you to look at this and see if you ever saw that instrument before? A. Yes, sir. Q. Is that your signature on the bottom of the check? A. No, sir. Q. Did you authorize your signature on that $500 check? A. No, sir, not for $500. Q. When did you first know that that $500 check was written? A. When they sent me a statement from the bank. Q. Do you mean a protest notice? A. Yes, sir, from the Farmers & Merchants Bank. Q. Did you know who wrote it? A. No, sir. Q. I will get you to state whether or not that Wallace Bradley denied writing that signature at the time of his arrest, there in your house? A. Well, no, not that I remember. Q. The sheriff was there, wasn’t he? A. Well, he came and got him. You came in the same time he did. Q. Would you say that he didn’t deny writing the check? A. Well, no, I don’t know. I don’t remember if that is what he said about it. I didn’t see this check at that time. I didn’t know anything about it. Q. Had you asked him about it, whether or not he had written this check? A. No, sir, I didn’t know anything about this check at that time. I only knew1 about the $100 check. Q. He also wrote a $100 check on you? A. The one, yes, sir. The check that was settled yesterday. When he was arrested I didn’t know anything about this one, this one came in afterward. Q. Now I will ask the reporter to mark this instrument state’s exhibit No. 2, and this one No. 3 and this one No. 4. Now I will hand you state’s exhibit No. 3, and ask you to examine it and state — (Interrupted) By Mr. C. B. Leedy: Now we object to that as incompetent, irrelevant and immaterial and no part of the prosecution in this case, and does not tend to prove or disprove any part or portion of this case. By the Court: The objection is overruled. By Mr. C. B. Leedy: To which the defendant Bradley excepts. Mr. Barnett: The defendant Kratz mades the same objection. By the Court: The objection is overruled as to the defendant Kratz. By Mr. Barnett: To which the defendant Kratz excepts. By Chas. B. Leedy: Q. Is that your signature? A. No, sir. Q. Did you authorize that signature? A. No, sir. * * * Q. When did you first find out that Wallace had written this $100 check? A. When I got a statement from the bank. Q. When the bank sent you a protest notice? A. Yes, sir. Q. Did you ever give anyone, Mrs. Bradley, authority to write a, $500 check against your account? A. No, sir. Q. You carried' your deposits in the Farmers & Merchants Bank here at Arnett, didn’t you, and do now? A. I have carried an account in both banks. Q. I mean on the 22d day of June, this year; you carried your account here at the Farmers & Merchants Blank in Arnett at the time, didn’t you? A. Yes, sir. Q. Did you ever instruct the Farmers & Merchants Bank, at any time, not to pay any checks written against your account by Wallace, or any one else? A. No, sir, not for sure; Avhen I first commenced doing business there again I taken up checks that they held for me, and I taken them up. There are m> checks out that I know of. Q. Those checks that you took up, those Avere checks that had been written against your account by Wallace and payment on them refused and sent back to the payee, Averen’t they? A. No, sir, I paid' some right in the bank. Q. Well, you never have withdrawn that instruction as to the bank, have you? A. I don’t remember. Q. Would you say you have? A. No, sir, I wouldn’t. By Charles B. Leedy: That is all.
“Cross-Examination.
“By C. B. Leedy: Q. Mrs. Bradley, on behalf of Wallace, is Wallace Bradley your son? A. Yes, sir. Q. Is your husband living? A. No, sir. Q. When did he die? A. Three years ago the 9th of last October. Q. At his death did he leave a will? A. No, sir. Q. Did he leave any property? A. Yes, sir. Q. After his death, you may state what was done with the bigger part or share of this property? A. We worked it, is all. Q. Well, Avhat was done with those shares? A. It is still there; 640 acres to the children. Q. Well, did you receive an instrument, or deed, for their share of that land? A. They deeded me a life estate in 640 acres and I have a warranty deed to 320 acres. Q. In addition to this 640 acres? A. Yes, sir. Q. Now, ever since the death of your husband, Joe Bradley, has your son, Wallace Bradley, at different times issued checks and signed your name to them? A. Yes, sir. Q. Have you paid each and all of those checks? A. Yes, sir, I have. Q. The $500 check now in question, involved in tbis action, you may tell the jury whether or not you tried and offered to pay it? A. Yes, sir, I have. Q. Now, have you authorized him, or allowed him to check on your account during the period since your husband’s death? A. At times I have, yes, sir. Q. Did you ever tell him not to write checks on your account, that you recall? A. Not that I remember. Q. Now when yod did authorize him to write checks on your account, did' you state any amount of the checks he should write? A. No, sir, I don’t remember that I did. I didn’t expect him to write much of a check. Q. He never did that, did he? A. No, sir. Q. But you recall at this time that when you received the notice of protest that this was one of Wallace’s checks, that you immediately came to the bank and offered to pay it? A. Yes, sir, when I received the writing. Q. And you came in and wanted to pay it at that time? A. Yes, sir. Q. Then what conversation did you have when you first came into the town of Arnett, after receiving that notice? A. I talked to Mr. Homre. Q. Mr. J. J. Homre? A. Yes, sir. Q. He is the President of the Farmers & Merchants Bank? A. Yes, sir. Q. Did he allow you to pay the check? A. No, sir. Q. What did he say about it? A. Well, he said he had two other checks there, but he said he wouldn’t let me pay them. He had them pinned to this check, there were two or three of them. I asked him to let me see them and why he wouldn’t let me pay them and he said he had no right to let me see them. Q. And he wouldn’t let you see it? A. That was the $100 check. Q. Did he show* you the $500 check? A. Yes, sir, he did, when it came in. Q. Well, did you then offer to pay Mr. Homre? A. Yes, sir, I told Mr. Homre that I wouldn’t let the bank lose it; that I would pay it, and he said for me to go and see Mr. Stuart. Q. Mr. Homre told you to go and see Mr. Stuart? A. Yes, sir. Q. In the Shattuck National Bank?1 A. Yes, sir. Q. Well, did you go and see Mr. Stuart? A. Yes, sir, I went up there the next day. Q. Well, after you got there, what did you do? A. I went in and talked! to Mr. Stuart; on the $500 check Clyde and I went in. When I talked to him about the $100 check he talked favorable. When I got notice of tbe $500 check I went and talked to Mm and be said no I couldn’t settle it no way. Q. Wbat else did be say? A. He said be tbongbt that tbe boy should be punished and be owed that to tbe banking business and to tbe public, and so on. By Mr. C. B. Leedy: That is all.
“Redirect Examination
“By Chas. B. Leedy: Q. Have you attempted to' pay Mr. Homre for the check? A. Yes, sir. Q. You bad the money there to pay it at that time? A. No1, sir, but I could get it. Q. Now you say he showed you the $100 check? A. Yes, sir, he took it out of a drawer there andi showed it to me. Q. When did you receive the notice of protest? A. I think the notice came in the mail into' Harmon on Monday morning and I came on to Arnett to see about it in the afternoon. Q. Do' you remember the date on the protest notice? A. No, sir, I don’t; I have them both at home. Q. I hand you state’s exhibit No. 2, which has been identified and ask you if that is a copy of the protest notice on the $500 check, which you received? A. Yes, sir, it is. Q. And what is the date of protest thereon? A. Well this is the 21st of June; is this right. Q. Now you didn’t receive — when did you receive the protest notice; did you say on Monday? A. I think so. Q. All right, now state whether or not that would be on the 24th day of June, this year? A. I don’t remember. Q. The check was issued on the 18th of June, wasn’t it? A. I don’t know that. Q. Now you say you went from the Farmers & Merchants Bank to Shattuck; did Mr. Homre show you the $500 check there too? A. It wasn’t there at that time, the $500 check wasn’t. Q. Did you go directly from the Farmers & Merchants Bank to Shattuck? A. Not until the next day. It was after five o’clock when Clyde came after me and the bank was closed. I had come down on the bus and didn’t have any way to' get over there until Clyde came, and when he came it was too late to' see anybody about it that day. Q. Did Mr. Stuart tell you that for the benefit of the public he wouldn’t settle? A. That was on the $100 check he told me that. Q. How many children have you; Mrs. Bradley? A. I have five, and a grand-daughter that takes her mother’s part of the estate. Q. How much money have you given Wallace as his part of the estate to date? A. I don’t know; I haven’t given him very much. Q. You say he has written several checks on you? A. Yes, sir. Q. And you have taken them up? A. Yes, sir. Q. They weren’t paid through the regular channels of banking business, were they? A. Some of them were. Q. You! had instructed the Farmers & Merchants Bank not to pay any checks excepting those checks bearing your signature, had you not? A. When the checks came in they would hold them and I would go and pay them. I didn’t have anyone that I could depend on for doing business after Mr. Bradley died. Q. But these checks were just taken up, and not paid through the bank? A. Just taken up there, yes, sir. By Chas. B. Leedy: That is all.
“Recross Examination
“By C. B. Leedy: Q. When checks came in that he had written, you wanted to come in and see them and take them up, is that right? A. Yes, sir. Q. But when you first began banking there you told them not to pay any checks unless they bore your signature? A. Yes, sir. Q. But always when checks were written you came in and paid them? A. Yes, sir. Q. And you wanted to handle any other checks written on you in the same way? A. Yes, sir. By C. B. Leedy: That is all.
“Redirect Examination
“By Chas. B. Leedy: Q. Did you instruct the Farmers! & Merchants Bank to hold all checks that Wallace hadJ written against your account; to hold them until you1 could come in and pay them? A. I never talked to anyone except Mr. Homre. By Chas. B. Leedy: That is all.”

The defendant, testifying in his own behalf, testified as follows:

“Q. Since that time, the death of your father, have you issued and signed checks on your mother? A. I have. Q. At various times? A. Yes, sir. Q. And in various amounts? A. Yes, sir. Q. Did your mother ever at any time advise you that you could not, and should not, write any more checks on her? A. No, sir, she did not. Q. On or about the 22nd day of June, 1935, did you write a check on your mother for $500? A. I did. Qf Where wasi that check written? A. At Shattuck, at the Santa Fe Cafe. Q. ' What did you do with that check? A. I took it to the bank and cashed it. Q. What bank? A. The Shattuck National. Bank. Q. When you went in there did they ask you any questions about that check, or in regard to the signature thereon? A. They did not. Q. What did you call for, cash? A. $250 in cash and a cashier’s check for $250. Q. At that time, at the time you signed and delivered the check there, how was the check signed, whose name? A. Nellie Bradley. Q. Who signed that name to that check? A. I did. Q. How did you sign the other checks that you wrote on your mother? A. Most of them just Nellie Bradley. Q. Just Nellie Bradley? A. Yes, sir. Q. You didn’t sign Nellie Bradley, by you? A. Maybe I did a few, but I don’t remember. Q. But practically all checks you wrote on your mother, you signed them straight Nellie Bradley, the same as you signed this one? A. Yes, sir. Q. Did the bank hesitate about paying it? A. No, sir. Q. At the time you obtained that money, did you obtain it for the purpose of defrauding the bank? A. No, sir. Q. Or cheating them out of any money? A. No, sir. Q. Was it your intention or purpose to get this money and pay the bank? A. No, sir. Q. Or to get the money and think your mother wouldn’t pay it? A. No, sir. Q. You had no intention or thought to cheat anybody? A. No, sir. Q. At this time, you haven’t seen the bank relative to making a settlement? A. No, sir. Q. Do you know) about your mother, what she had done? A. She said she had tried to. By the Court: Don’t tell what your mother told you. Q. Now has your mother, at any time, or since this check Avas written by you, informed you not to write checks on her account? A. She has not. Q. Up to this! time? She hasn’t? A. No, sir. Q. Now all the money you got there at the time was on your mother’s check that you had signed, just as you had done here the last two or three years? A. Yes, sir. By C. B. Leedy: That is all, you may examine.”

The defendant demurred to the evidence of the state in this case, and made a motion for a directed verdict, which was overruled by the court and he excepted. The first question raised by the defendant is that under the facts as shown by the above statement the defendant is not guilty of forgery under the law. This question has given us no little concern. Forgery has been defined by this court, in an opinion by Judge Doyle, in the case of Wells v. Territory, 1 Okla. Cr. 469, 98 Pac. 483, 486. After quoting the statute on forgery (22 Okla. St. Ann. § 404) he says:

“The foregoing provision sets forth the offense sought to be charged by the indictment in this case; and by this provision, the gravamen of the offense is the sale, exchange, or delivery of the instrument for a consideration, knowing it to be forged or counterfeited, with the intent to cheat and defraud.”

We have carefully examined the instruments given by the court, and they are exemplary as far as they go. They set out the information under which the defendant was charged; the statute under which the prosecution is based; forgery is defined, and the court then charges the jury:

“Before one can be convinced of the sale of forged evidence of debt, there must be an intent to cheat and defraud and a knowledge of the falsity of the instrument.”

To our mind the court should have gone a step further and charged the jury:

“One of the questions necessary for you to determine in considering the present case is whether or not Wallace Bradley, tbe accused, bad or honestly and in good faith believed he had authority to sign the check in question in this case. For if he did have such authority, or honestly and in good faith believed he had the authority, his intent would not have been a fraudulent one and he could not have been found guilty of the crime with which he has been charged, and, if on the other hand you should believe that the defendant Wallace Bradley had no authority to sign the check in question, or that he did not honestly and in good faith believe that he had such authority, and that he signed the same fraudulently and with intent to defraud the bank as charged in the information, your verdict should be a verdict of guilty.” See State v. Thomas, 6 Boyce 195, 97 A. 869.

This was the very defense that was being made by the defendant. The defendant has a right to have a clear and affirmative instruction given to the jury applicable to his testimony, based upon the hypothesis that it is true, when such testimony affects a material issue in the case. Shears v. State, 20 Okla. Cr. 193, 201 Pac. 816. He claimed that he had authority from her to write checks and to sign her name to them. While testifying that she did not give him authority to sign the specific check relied upon in the prosecution of this case, her testimony was to the effect that she had given him authority to sign checks, and that she had always taken them up, either at the bank or in the hands of the party to whom they had been issued, and that she had made an attempt to pay off the check in this identical case, at both the Farmers & Merchants Bank at Arnett and the National Bank at Shattuck, but was not permitted to do so by her banker who desired to prosecute the defendant. No doubt the defendant had done wrong, and the banker was right in thinking he should be stopped from imposing upon his mother, by writing checks upon her account and spending the money seeking idle pleasure. But she was his mother and if she had given him authority to write the check in question as he contended, or if he honestly believed that he had such authority, and her acts and conduct in the past had been such that would cause a reasonable and prudent person to believe that he had such authority, then certainly this question should have been submitted to the jury for their determination as to whether he had the authority as he contended, or if from, all the evidence in the case (including, that of Mrs. Bradley), he did honestly and in good faith believe that he had such authority. The defense submitted by the defendant was not presented. It is true that defendant should have submitted a requested instruction covering his theory of the case as above outlined, and we have held many times that it ivas his duty to do so. Walker v. State, 50 Okla. Cr. 333, 297 Pac. 331.

In Williams v. State, 12 Okla. Cr. 39, 151 Pac. 900, 901, the court says:

“Only prejudicial errors raised by exceptions reserved require a new trial, and that is only when we are satisfied that the verdict was contrary to law, or to' the evidence, or that injustice has been done, that we are permitted to reverse a conviction, whether or not an exception has been taken in the trial court.”

For this reason we could not reverse this case if the evidence was such that in our opinion it justified the conviction of the defendant for the crime of forgery. But we do not believe that, under the evidence of Mrs. Bradley, and the law as applied thereto, the defendant was guilty of the crime of forgery. Under her testimony it does not occur to us that the liberty of this defendant should be taken from him by serving a term in the penitentiary for the crime of which he was convicted. People v. Reinitz (Gen. Sess.) 6 N. Y. S. 672; State v. Lurch, 12 Ore. 95, 6 Pac. 405; Kotter v. People, 150 Ill. 441, 37 N. E. 932; Sweet v. State, 28 Tex. App. 223, 12 S. W. 590; State v. Thomas, 6 Boyce 195, 97 A. 869; State v. Petridge, 106 Wash. 445, 180 Pac. 150.

If it should be deemed advisable by the state to retry this defendant, the jury should be instructed as above outlined, to the end that the jury may pass upon the question of the good faith of the defendant as to whether he had the authority to sign the check, or honestly believed that he had such authority, and if these facts were true there would be no- intent to cheat and defraud under the forgery statute of this state. In addition to the above authorities we call attention to the case of Willetts v. Scudder, 72 Ore. 535, 144 Pac. 87, 90, where the court says:

“One of the material facts necessary to constitute the’ crime of forgery is an intent to defraud. If the plaintiff, when he indorsed the check, acted in good faith and believed that he had a right, as agent of the company, to indorse it, and did not intend to defraud any one, he did not commit the crime of forgery. The signing of another’s name to a note or a check without authority is not necessarily forgery. It constitutes that offense only when it is done with intent to defraud.
“The question whether the paintiff indorsed the check with intent to defraud was a question of fact to be determined by the jury from the circumstances relating to the act, as shown by the evidence. It was the province of the jury, and not the court, to determine whether the plaintiff indorsed the check in question with intent to defraud.
“In People v. Wiman, 148 N. Y. [29] 33, 42 N. E. [408] 409, the court says: ‘Criminal intent is essential to constitute the crime (forgery), and the testimony bearing thereon is always a question for the jury.’
“In State v. Bjornaas, 88 Minn. [301] 305, 306, 92 N. W. [980] 982, the court says: ‘It is elementary that the animo furandi or intent to defraud, is an essential element of the crime of forgery, or of uttering a forged instrument, which is to be proved or inferred from facts reasonably tending to establish a guilty purpose, and may be negatived by evidence showing the absence of such an intent. * * * As stated in a case very similar on the facts to the one at bar: Where the intent to damage or defraud is a salient and essential part of the case, such intent is not an irrebuttable presumption of law, but is an open question for the jury, to be determined by the facts and circumstances in proof, for the signing of another’s name without authority is not necessarily forgery.
“In Agee v. State, 113 Ala. [52] 57, 21 So. [207] 208, the court says, referring to a charge given to the jury: ‘This charge withdrew from the jury. all consideration of one of the ingredients of the offense alleged (forgery), the intent to defraud, which was a matter of inference from the facts before them, to be drawn or rejected by them, as those facts seem to them to require’.
“In Gooden v. State, 55 Ala. [178] 180, the court says: ‘The charge given by the court cannot be supported. It withdraws from the jury all consideration of the intent to defraud — a matter of inference from the acts before them, which it was their province to draw or reject.’
“In Hotter v. People, 150 Ill. 441, 37 N. E. 932, the syllabus in part is: ‘On the trial of one for the forgery of receipts, the court on behalf of the people, instructed the jury that, while it was necessary that the defendant should have forged the receipts with the intent to damage and defraud the persons whose names were signed thereto, yet if they found that the defendant forged the receipts, or either of them, then the law would presume that defendant intended to damage and defraud such persons. Held, that it was error to give the instruction.’
“In McCay v. State, 32 Tex. Cr. R. 233, 22 S. W. [974] 975, the court says in part: ‘It is not every signing of another’s name without authority which constitutes forgerv. There must inhere in the act an intent to injure or defraud. If there is a reasonable and honest belief that the signature will be approved, there can be no forgery.’
“In State v. Gullette, 121 Mo. [447] 457, 26 S. W. [354] 356, the court says: ‘Instructions 1 and 2 given on behalf of the state were erroneous in not submitting to the jury the issue raised by the allegations of the indictment and defendant’s plea of not guilty, whether the act charged, if done, was done with the ‘intent to injure or defraud’.”
“In Knowles v. State (Tex. Cr. App.) 74 S. W. 767, the court says: ‘Now, if Haney authorized appellant to sign the name, or if appellant believed he had a right to sign the name under all the existing circumstances, he would not be guilty. * * * Upon another trial this matter should be submitted in the charge to the jury.’
“In Regina v. Beard, 34 Eng. Com. L. 659, Coleridge, J., says: ‘It is not merely writing another man’s name, but writing it without authority and with intent to defraud. But I go further, because I think that if a person had reasonable ground for believing, from the acts of the party, that he had authority to accept, and did in point of fact act upon that, it could not be forgery.’
“Writing the company’s name on the back of the check without authority so to- do was not necessarily forgery. Such an act, to constitute forgery, must be done with the intention to defraud. Assuming that the plaintiff had no authority to endorse checks belonging to the Scudder Syrup Company, still his indorsement of the check in question did not constitute the crime of forgery, unless he did it with intent to defraud.”

In the case of Cornelius v. State, 27 Okla. Cr. 331, 227 Pac. 845, 846, Judge Bessey, speaking for this court, says :

“The defendant now claims that under this state of facts he was not guilty of forgery, but if guilty of any offense it was the offense of false pretense; that where an accused is charged with affixing the signature of another to a written instrument it is a complete defense to a charge of forgery to show that he had authority to do so.”

Judge Bessey further says:

“Under some circumstances this contention might he upheld.”

But from the peculiar facts in this case he finds that the defendant could not have given such authority by reason of the fact that he was a minor and was intellectually incapable of making a contract; but it seems that when he uses the expression “Under some circumstances this contention might be upheld” he had in mind just such state of facts as exists in the case at bar.

For the reasons above stated, the judgment of the district court of Ellis county is reversed.

DOYLE, J., concurs. DAVENPORT, P. J., dissents.


source: Caselaw Access Project

license: Public Domain

text:
    WALLACE BRADLEY v. STATE.
    No. A-9065.
    Dec. 2, 1937.
    (74 P. 2d 134.)
    C. B. Leedy, for plaintiff in error.

      Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Chas. B. Leedy, CO'. Atty., for the State.
   BAREFOOT, J.

The defendant was charged by information in the district court of Ellis county, with the crime of forgery, was tried, convicted and sentenced to serve a term of two years in the reformatory at Granite, and has appealed.

This is a companion case of that of Wallace Bradley v. State, 63 Okla. Cr. 203, 71 P. 2d 126, this day decided. In this case the defendant was charged with the forgery of a check for $100, and in case No. A-9064, he was charged with the forgery of a check for $500. The evidence is practically the same in each of the cases. In this case Mrs. Bradley testified:

“Q. Just tell about Wallace here, whether you did or didn’t instruct him not to write any more checks on your account? A. I told him he could, but I didn’t tell him to write any $100 check. Q'. But when he did write the $100 check you were willing to take it up and pay the bank? A. Yes, sir. * * * Q. What do you mean by that? A. Any time when I thought he needed the money I didn’t care. Q. Didn’t you take up those checks for Wallace for the purpose of keeping him out of trouble? A. I didn’t think they would put him into trouble. * * * Q. You have never told him that he must not write any checks on you? A. No, sir.”

The defendant testified as follows:

“Q. Now prior to that time you had been writing checks and signing your mother’s name to' them? A. Yes, sir. Q. Had you written any checks in the last three years on your mother’s account that she had not paid? A. I had not. Q. You may state if she at any time instructed you that you must not write any checks on her? A. ¡She had not.”

The instructions given by tbe court in this case are identical with case No. A-9064, except that in the instant case the court instructed the jury as follows :

“You are further instructed that if you find that the defendant, Wallace Bradley, had authority from Nellie Bradley to sign her name to the said check for $100, and to cash said check, then and in that event you will find' the defendant not guilty.”

This instruction is correct as far as it goes, but it does not inform the jury that if defendant honestly and in good faith believed he had authority to sign the check in question he would not be guilty of the crime charged. However as stated in case No. A-9064, 63 Okla. Cr. 203, 74 P. 2d 126, this case would not be reversed for this error for the reason no requested instruction was presented by defendant. But we do not believe that, under the evidence of Mrs. Bradley, and the law as applied thereto, defendant is guilty of the crime of forgery.

The judgment of the district court of Ellis county is therefore reversed.

DOYLE, J., concurs. DAVENPORT, P. J., dissents.


text:
    E. H. LEATHERS v. STATE.
    No. A-9290.
    Dec. 10. 1937.
    (74 P. 2d 967.)

      J. Q. A. Harrod and Laynie W. Harrod, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Lewis Morris, Co. Atty., for the State.
   BAREFOOT, J.

The defendant was charged with the crime of selling intoxicating liquor to a minor, was tried, convicted, and sentenced by the court to pay a fine of $300 and to serve a term of three months in jail, and has appealed.

The facts revealed by the evidence of the state are that the prosecuting witness, Bettie Lou Reed, is a little girl, nine years of age. She was living with her grandmother in Oklahoma City, near where the defendant lived and owned and operated a store. On Monday, August 3, 1936, she went to defendant’s store. Her testimony was as follows :

“Q. How did yon happen to go into that store to buy that whisky the day before? A. Grandmamma sent me. Q. Your grandmother sent you? A. Yes, sir. Q. How much money did you have? A. A quarter. Q. This man in the store, this man over here, was he there when he got down there? A. Yes, sir. Q. What did you say to him? A. I said, ‘Curley, mamma wants some whisky.’ Q. When you said mamma you meant your grandmother, did you? A. Yes, I meant my grandmamma. Q. What did he do when you told him that? A. He went in there and got it. Q. He went in there and got it? A. Yes, sir. Q. When you say he went in there and got it, where did he go to get it? A. In the back. Q. Where did Curley live? A. In the back. Q. He had a store out in front? A. Yes. Q. Did you go in the back with him? A. Yes. Q. All right, what did you do when you got in the back? A. He poured some liquor in a bottle. Q. He put some liquor in the bottle? A. Yes. Q. Where did he get the bottle? A. I took the bottle with me. Q. Did it have any writing on it? A. No, it was plain glass. Q. Glass bottle? A. A plain glass bottle. Q. Did you take the bottle home to your grandmother’s place? A. Yes, sir. Q. Where did he get the whisky that he poured into the bottle? A. He got it out of the half gallon fruit jar. Q. Was it a round or a square jar? A. Square. Q. And he filled the bottle up you had with you? A. Yes. Q. Did you pay him for it? A. Yes, sir. Q. How much did you pay him? A. A quarter. Q. You gave it to him there? A. Yes. Q. What did you do with the bottle of whisky? A. I put it in the sack. Q. What did he do with it? A. What did he do with it? Q. What did you do with it? A. I took it home. Q. He gave it to you? A. Yes, sir. Q. And you took it home? A. Yes, sir. Q. When you got home, who did you give it to? A. I gave it to grandmamma.”

On the day following, Tuesday, the 4th day of August, 1936, this little girl was taken to the office of the county attorney, and there related her story to the assistant connty attorney as given in evidence in this case. The assistant county attorney sent her, in company with two officers, and another party, to the place of business of the defendant for the purpose of having her identify the defendant, as the one from whom she secured the liquor the day before. The officers, over the objection and exception of defendant, were permitted to testify that when they went to the place of business of the defendant, he immediately went into the rear of the room where he lived, and one of the officers followed him and found a bottle of whisky on the bed, and that the officer said to him:

“You ran away, but you did not get away with it far enough.”

The defendant did not take the witness stand in his OAvn behalf, and the above was all the evidence offered by the state. The defendant demurred to the evidence and made a motion for a directed verdict requesting the court to instruct the jury as follows:

“You are instructed in this case that if you find and believe from the evidence or have a reasonable doubt thereof, that the grandmother of the child, Bettie Lou Need, gave Bettie Lou Eeed the money and sent her with the money to buy whisky and that the witness Bettie Lou Eeed went to the place of business of the defendant and informed the defendant of such facts and the defendant delivered the whisky to said child and the child delivered the whisky to* the grandmother, without being opened, would constitute a sale to the grandmother and not the child, and you should return a verdict in favor of the defendant and against the state.”

The court overruled the defendant’s requests, to which he excepted. A part of instruction No. 6, given by the court, and to which the defendant excepted, was as follows :

“Where one person delivers to another intoxicating liquors for a consideration of money, then and there paid, such transaction is a complete sale as far as the seller is concerned, and it is immaterial that the purchaser subsequently delivers such liquor to another person or persons for a price, or otherwise.”

This constitutes the first error complained of by defendant.

The evidence of the state conclusively shows that the witness, Bettie Lou Reed, was sent by her grandmother to secure the whisky for her personal use from the defendant; that she revealed this fact to him; and that the grandmother furnished the money for the purchase of the liquor, and that the grandmother drank liquor, and that the witness, Bettie Lou Reed, in no way consumed any of the liquor, but delivered it to her grandmother in the original package. The question to be decided is, Do these facts, as above outlined, constitute under the law a sale to Betty Lou Reed, a nine-year-old minor, or to her grandmother? If to the minor, as charged in the information in this case, then under our statute it is a felony. If it was a sale to the grandmother, then it was a misdemeanor and therefore triable in the county court, and the district court had no jurisdiction of this case. This exact question is presented to this court for the first time, and we consider it of the utmost importance. The reason for its importance is that should it be held that under the law it was not a sale to the minor, then the law should be construed so that a subterfuge could not be resorted to by those attempting to deliver liquor to a minor. We have examined many opinions and the leading text-books upon this question, and from our examination of the same what at first seemed to be a disputed question seems to be unanimously settled law. The conflict seemingly depends upon the language of the different statutes that are construed. All of the authorities hold the general rule to be as laid down by Black on Intoxicating Liquors, § 420, p. 492, where it is said:

“When a minor purchases liquor, not for his own consumption, but for the use of another person, as whose agent or messenger he is acting, and to' whom the sale might lawfully be made, the guilt or innocence of the seller will depend upon the disclosure to the seller of the fact of agency, because, so far as concerns the seller, that will determine the person who is to fill the character of purchaser. If the minor informs the liquor-dealer that the liquor purchased is for the use of another person, who has sent him to buy it, and with whose money he pays for it, such being, in truth the case; or if the dealer knows, from other sources of information, that the real purchaser is an adult and the minor is only his messenger; then the sale takes place between the dealer and the adult, the. minor is not concerned in it except as the conduit by which the money is conveyed to the one and the liquor to the other, and consequently the dealer cannot be convicted of selling to the minor. To ‘sell’ liquor to a minor is what is forbidden by the statute. Merely to deliver liquor to a minor, with notice that it is to be carried to- an adult, is not a sale, within the meaning of the statute. We cannot extend the terms of a criminal statute beyond its clear legal meaning. We cannot construe the word ‘sell’ in the statute to mean something, different from its ordinary legal import. Undoubtedly, a minor may be an agent or lawfully go on errands for an adult, and a person may buy through an agent, and in such case, there being no' question of the fact of agency, although the dealing is with the agent, and the delivery is to him, in legal effect, the sale is to the principal. The law is, that where a person contracts as agent, or he is known to be such, the contract is with the principal, and not with the agent; but where the agent deals in his own name, and the principal is not disclosed or known, the contract is with the agent, and' he is liable. Hence, for example, the seller should he allowed to show that the liquor was drawn and delivered1 to the minor in pursuance of an agreement between his parent and the defendant, on the previous day, for its purchase and subsequent delivery to1 the minor.
“But, on the other hand, as between a seller and! an agent, Avlm deals with him without disclosing the fact that he acts as agent, the latter, as well as the principal, may he regarded as the purchaser. A liquor seller who contracts with a minor may therefore be convicted of selling liquor to a, minor, notwithstanding the fact may subsequently be disclosed that the minor acted as agent for an adult. In other words, if the seller has no notice or knowledge, either from the statements of the minor, from a, previous course of dealing, or from other sources, that the minor is making the purchase for any one but himself, so that, for all the seller knows to the contrary, he is selling liquor to a minor for the latter’s own use, he is guilty of the statutory offense, although, in point of fact, the minor was acting as agent or messenger for another.
“In some of the states, the statutes are so framed as to render unlawful the delivery of liquor to a minor, even when he acts merely in the behalf of a disclosed principal. Thus, in Massachusetts, under a law which provides that ‘no sale or delivery of liquor shall be made in the premises described in the license * * * to a minor, either for his own use, the use of his parent, or of any other person,’ it is held that a complaint, alleging a sale to a minor, may be sustained by evidence of a sale to- a minor for the use of an adult, although the fact of its being for such adult’s use was disclosed at the time of the sale, and the minor was merely a messenger sent for the liquor.”

The Massachusetts statute, as above set forth, is one of those upon which the exception is based. It does not permit the “sale” or “delivery” to a “minor, either for his own use, the use of his parent, or of any other person.” No such provision appears in the Oklahoma Statutes. Under the general rule, as above stated, it should be understood that Avhere liquor is delivered to a minor, and it is not revealed to the seller that it is being bought for an adult, the seller is guilty. If the liquor is delivered and consumed by the minor, the seller is guilty. In other words, the seller assumes the responsibility, and we hold that it is only where it is clearly shown that the minor is a messenger for the buyer, and this fact is revealed to the seller, and the liquor was in fact for the buyer, and the money was actually furnished for the payment of the same by the buyer, and there is no subterfuge, is the seller not guilty. If the facts show that the minor purchased the liquor for himself, or if he actually used the liquor himself or delivered it to some one other than the one for whom it was purchased, the seller would be held responsible, for the reason that he assumes this responsibility in dealing with the minor. The mere fact that the minor informs the seller that he is buying it for the use of another does not relieve the seller of the responsibility if his statements are not true. The rule above stated is followed in Woollen and Thornton on the Laws of Intoxicating Liquors, volume 2, § 725, p. 1227:

“However, the majority of the cases hold that a sale to a minor as the agent of a disclosed principal, known so to the vendor, is not a violation of a statute preventing sales to> a minor, for the sale is, in law, to the principal, although thereby the liquor is placed within the physical control of the person from whom it was the intent of the statute to keep it. Such a sale does not require a written order of the parent where sales can only be made to a minor upon such an order. In making the sale to the minor for another the vendor takes the risk that the representations of the minor are true, and if they be false he has committed the offense of selling liquor to a minor. In speaking of a sale to a minor as the agent of another, the Supreme Court of Mississippi has said: ‘To sell liquor to a minor is what is forbidden by the statute. Merely to deliver liquor to a minor, with' notice that it is to be carried to an adult, is not a sale, within the meaning of the statute. We cannot extend the terms of a criminal statute beyond its clear legal meaning. We cannot construe the word “sell” in the statute to mean something different from its ordinary legal import. Undoubtedly, a minor may be an agent or lawfully go on errands for an adult, and a person may buy through an agent, and in such case, there being no question of the fact of agency, although the dealing is with the agent, and the delivery is to him, in legal effect, the sale is to the principal. The law is that where a person contracts as agent, or he is known to be such, the contract is with the principal and not with the agent; but where the agent deals in his own name, and the principal is not disclosed or known, the contract is with the agent, and he is liable.’ ”

15 Ruling Case Law, § 127, p. 363, lays down the rule as follows:

“While, from the standpoint of the purpose of preventing the furnishing of liquor to minors for their own indulgence, the prohibition has been held not to apply to a minor sent by his father to buy for him, the question whether the agency was disclosed is usually made the test of criminal responsibility. It is uniformly held that such responsibility is not affected by the fact that the minor acted as agent or messenger for an adult, if the agency was unknown to the seller at the time of the sale, and the minor’s mere statement that he is buying for another does not excuse the defendant, if the principa11 was not named or otherwise specifically identified, for in such case the sale is made to the minor and not to the undisclosed principal; conversely, the weight of authority supports the view that when the sale is made with knowledge that the liquor is for the use of a disclosed adult, the seller is not guilty of selling to a minor, inasmuch as the relation of vendor and .vendee cannot, in such a case, exist between the seller and the minor; but some courts! have refused to take this view, influenced possibly in some instances, by the particular phraseology of the statutes involved, as where the inhibition is against sales for the minor’s own use or that of any other person. If it should turn out that the liquor was in fact purchased by the infant for himself notwithstanding any representations or appearances to the contrary, it would seem that the seller should be held responsible, in keeping with the rule that even where the sale is made on what purports to be the order of an adult, the dealer usually must assume the risk of the minor’s conduct, and if the order turns out to be a fabrication or to have been forged, it does not serve to excuse the sale, this rule being as clearly defined as the view that where the statute requires a written order, neither a verbal order, nor one given by a person other than those authorized by the statute, constitutes a defense.”

The Supreme Courts of many states have passed upon, this question in cases where the facts were almost identical with the case at bar. The St. Louis Court of Appeals of Missouri, in the case of State v. Feldman, 150 Mo. App. 120, 129 S. W. 998, 999, says:

“Nor is it a defense to a prosecution for the violation of this and cognate statutes, that the father gave verbal consent (State v. Johnson, 44 Mo. App. 84); or that the minor bought as agent for an adult person, if he did not disclose the fact to the seller (State v. McLain, 49 Mo. App. 398); but if he did disclose it, the sale is to be taken as made to the principal and not to the minor.”

The Court of Civil Appeals of Texas, in Laing v. State, 9 Tex. Civ. App. 136, 28 S. W. 1040, says:

“Where an adult who employed a minor sent him to defendant’s saloon to buy some beer for him, and the minor so informed the saloon keeper, the sale was to- the employer, and not to the minor.”

The Supreme Court of Arkansas, in the case of Wallace v. State, 54 Ark. 542, 16 S. W. 571, says:

“The question in this case is, Was the statute violated by simply delivering, liquor to a minor who was known to be doing an errand for another? The prohibition of the statute is against the sale or giving away of liquor to a minor (Act Ark., April 6, 1889, p. 122), and, unless the act complained of amounts to a sale or giving away of liquor to the minor, it is not a violation of the law. ‘To deliver liquor to- a minor for the use of the parent is not to sell it to the minor,’ says Mr. Bishop. (St. Crimes, § 1021.) The quotation is the statement of an obvious rule of law, when the liquor is delivered for the known purpose of the parent’s or another’s use, for then no relation of vendor and vendee can be said to- exist between the minor and the liquor seller; and, to deliver liquor to one merely to be carried by him to- another, is not to ‘give away’ liquor to the one who bears it. We cannot construe the term ‘give away’ in a penal statute to mean something different from its ordinary legal and commonly accepted import. Ward v. State, 45 Ark. 351; Gillan v. State, 47 Ark. 555, 2 S. W. 185. However defective the law may be thought to be, it is not the province of the courts- to extend it so- as to cover cases not within its. terms, as would be done if we should construe the term ‘give away’ to cover the case stated.”

The Supreme Court of Nebraska, in the case of In re MacRae, 75 Neb. 757, 106 N. W. 1020, 1021, 121 Am. St. Rep. 829, says:

“This doctrine seems to be sustained by Commonwealth v. Lattinville, 120 Mass. 385; O’Connell v. O’Leary, 145 Mass. 311, 14 N. E. 143; State v. McMahon, 53 Conn. 407, 5 A. 596, 55 Am. Rep. 140; State v. Walker, 103 N. C. 413, 9 S. E. 582; Monaghan v. State, 66 Miss. 513, 6 So. 241, 4 L. R. A. 800; Wallace v. State [54 Ark. 542] 16 S. W. 571, and Kandall v. State, 14 Ohio St. 435. In Monaghan v. State, supra, it was said: ‘To “sell” liquor to a minor is what is forbidden by the statute. Merely to deliver liquor to a minor, with notice that it is to be carried to an adult, is not a sale within the meaning of the statute. We can not extend the terms of a criminal statute beyond its clear legal meaning. We can not construe the word “sell” in the statute to mean something-different from its ordinary legal import. Undoubtedly, a minor may be an agent or lawfully go on errands for an adult, and a person may buy through an agent, and in such a case, there being no question of the fact of agency, although the dealing is with the agent and the delivery is to him, in legal effect the sale is to the principal. The law is that where a person contracts as agent, or he is knoAvn to be such, the contract is with the principal, and not with the agent; but where the agent deals in his own name, and the principal is not disclosed or known, the contract is with the agent and he is liable.’ ”

The Supreme Court of West Virginia, in the case of State v. McNeal, 66 W. Va. 411, 66 S. E. 512, 25 L. R. A., N. S., 178, 135 Am. St. Rep. 1038, upholds the same doctrine.

In Harley v. State, 127 Ga. 308, 56 S. E. 452, the Supreme Court of Georgia held that when one delivers intoxicating liquors to a minor, and the undisputed evidence showed that the minor was in good faith acting, as the agent of a named person, who furnished the money therefor, and the minor actually earned and delivered the liquor to such third person, without consuming or parting with any of it on the way, the sale was to' the principal, and the seller was not guilty of selling or furnishing liquor to the minor.

In Short v. People, 96 Ill. App. 638, the Appellate Court of Illinois has held that when a number of men together contributed a sum of money for the purchase of beer, and, at their request and upon their written order, a boy procured the beer from the accused and carried it to the men, and there was no evidence that the boy drank any of the beer or had any interest therein; it was held that the boy was a mere carrier for hire, and that, for the sale to him, as agent for the men, there could be no conviction.

See, also, McElwee v. State, 73 Tex. Cr. R. 445, 165 S. W. 927.

The statute under which the defendant was prosecuted, Oklahoma Statutes 1931, § 2622, Okla. St. Ann., tit. 37, § 5, p. 527, is as follows:

“It shall be unlawful for any person to barter, sell or give to' any minor, person of unsound mind, or habitual drunkard, any spirituous, vinous, fermented or malt liquors, or any imitation thereof, or substitute therefor; or any liquors or compounds of any kind or description whatsoever, whether medicated or not, which contain as much as one-half of one per centum of alcohol, measured by volume, and which is capable of being used as a beverage, except.”

This statute became effective March 8, 1913. Subsequent to that time the law has been amended so that beer containing a percentage of alcohol of 3.2 per cent, may be legally sold in this state. It is universally known that it is sold at many places, including grocery stores, where other commodities are sold. To construe the above statute as it was construed by the court in this case, in the giving, of instruction No. 6, parents who send their minor child to the grocery store or other place as their messenger to secure beer, which contains a percentage of 3.2 alcohol, which is a greater percentage than that specified in the above statute, then the party delivering the beer to the minor to deliver to its parent would be guilty of violating this statute by selling to a minor. We do not think any such construction should be placed upon the statute, nor is it justified under the law.

If the facts in this case showed that the minor, Bettie Lou Reed, age nine years, had in any way used this liquor for herself, or had she failed to disclose for whom it was1 being secured, or if there had been any subterfuge practiced in any way, we would not hesitate to affirm this decision, under proper instructions of the court, but under the facts proven by the state, it is conclusively shown that her grandmother was sick, and gave her the bottle and money with instructions to go as her messenger and procure the whisky from the defendant; that she immediately revealed to the defendant that her grandmother had sent her for the whisky; and the same was immediately returned by her to the grandmother unmolested. Under the law, this sale Avas to the grandmother and not to the minor. Under the law, the sale to the grandmother was a violation of the laws of this state, and in this case the defendant should have been charged with the sale to the grandmother. No doubt from the evidence introduced, the defendant was engaged in the unlawful sale of liquor. He should be punished, but this punishment should be brought about in the manner prescribed by law. The enactment of the statute was to forbid the “barter, sale or giving away of liquor to a minor,” and a different interpretation as applied to the facts in this case would be beyond its plain terms. Our statute does not use the Avord “furnish” as do' some of the statutes of different states, but the terms used are “barter,” “sell,” and “give a-Avay.” Rhodes v. State, 30 Okla. Cr. 2, 234 Pac. 645.

The jury found the defendant guilty, and, failing to agree upon the punishment, it was left to the court, who assessed a fine of |300 and a jail sentence of 90 days. If the information had charged the sale to the grandmother and the case had been tried in the county court, and the defendant found guilty, a fine of not to exceed $500 and imprisonment for six months in jail could have been imposed. It will thus be seen that the defendant could, have been adequately punished had he been charged with the sale to the grandmother.

From what has been stated it follows that the court erred in giving instruction No. 6, to which the defendant excepted. This instruction did not present the issue of whether the liquor was purchased by the grandmother, but assumed that defendant was guilty if the delivery was made to the minor and the money paid by her to the defendant, regardless of the fact that the minor acted as agent for her grandmother in the purchase of the same. It therefore becomes unnecessary to pass upon other errors assigned, as they will not arise in another trial in the county court. The judgment of the district court of Oklahoma county is reversed.

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


author: DAVENPORT, P. J.

text:
    F. E. WILLIAMS v. STATE.
    No. A-9331.
    Dec. 10, 1937.
    (74 P. 2d 632.)

      F. E. Sides, for plaintiff in error.
    Mae Q. Williamson, Atty. Gen., and Jess L. Pullen,' Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

John Williams was by information charged with the murder of Myrtle Lambeth; was tried, convicted and sentenced to- life imprisonment. Motion for new trial was filed, considered, overruled, exceptions saved and the plaintiff in error has appealed, Hereafter the plaintiff in error will be referred to as the defendant. The charging part of the information, omitting the caption and signature, is as follows:

“In the name and by the authority of the state of Oklahoma, comes now Lewis R. Morris, the duly qualified and acting county attorney in and for Oklahoma county, state of Oklahoma, and on his official oath gives the district court in and for said Oklahoma county and the state of Oklahoma, to know and be informed that heretofore, to wit: on the 15th day of September, A. I). 1936, in Oklahoma county, state of Oklahoma, John Williams whose more full and correct name is to your informant unknown, then and there being, did then and there willfully, and. unlawfully, and feloniously commit the crime of murder in the manner and form as follows to wit: That is to say, the said defendant in the county and state aforesaid, and on the day and year aforesaid, then and there being, did then and there knowingly, willfully, and feloniously, without authority of law and with the premeditated design to take the life of Myrtle Lambeth, drive, propel and operate a certain automobile to wit: a 1936 Ford Tudor sedan, 1936 Oklahoma license No. 234-050, upon a public highway, to wit: on South Walker street in the 1000 block in Oklahoma City, said county and state, while under the influence of intoxicating liquor, and in a careless, reckless and negligent manner, and in a manner imminently dangerous to others and evincing a depraved mind, regardless of human life, and the said defendant, while driving said automobile as aforesaid, did drive said automobile into and against the body of the said Myrtle Lambeth with such force and in such manner as to then and there inflict certain mortal wounds upon the body of the said Myrtle Lambeth, from which mortal wounds so inflicted, as aforesaid, the said Myrtle Lambeth did die instantly, as was intended by the said defendant, contrary to the form of the statutes in such cases made and provided against the peace and dignity of the state of Oklahoma.”

The state to sustain its allegations called R. D. Lam-beth, who in substance stated:

“I lived at 505 Southwest Tenth street,' in Oklahoma City, on the 15th day of .September, 1936; was employed as a street car motorman for the Oklahoma Hallway Company; at the northwest corner of the intersection there is a filling' station, where the street runs into Walker there is a jog of some 18 feet, about 45 degree angle across Walker; the Garrett Grocery was nearer there where Tenth street goes east; on the east side of Tenth street is a filling station; the grocery store is operated by Mr. Chapman and his wife; Myrtle Lambeth was 25 years old, September 15, 1936; I got off from work at 2:09 andi got to the hospital at 2:30, my wife was dead when I got there; we had been married one year, four months, and two days.”

Mrs. J. L. Chapman, testifying for the state, stated:

“I was in the grocery business located at 435 Southwest Tenth street, just east of the filling station on the corner of Tenth and Walker; during her lifetime Myrtle Lambeth was a customer of mine; I remember the day she was killed; I did not go to the scene of the accident until after the accident was over; I saw the deceased about 20 minutes before the accident, she was in the store and purchased some things; she lived on Tenth street west of our store, and west of Walker street; the first I knew that the accident occurred the filling station boy brought in a grocery book and asked me if I knew the lady; the book had dropped out of her hand; I told the boy it was Mrs. Lambeth; that was about 20 minutes after Mrs. Lambeth made her purchases and left the store.”

Gus Benedict, called as a witness, testified:

“I live at 609 Southwest 29th street; I am well acquainted with Walker and Tenth street; there is a little Catholic school on the west side of the street, and the Washington school on the south side of Heno- street on Walker. Mrs. Lambeth was killed at Southwest Tenth' and Walker. I was sitting in a Ford car on Pine, on the south end of the viaduct or underpass, that would be in the 1000 block; my car was in motion facing south ready to make a turn, and I saw the defendant strike Mrs. Lambeth; she was about the middle of the street on Walker going west; there is a double street car track where two cars can pass; I saw the car hit her with the left front fender. I have had experience with driving cars and this car was making 40 miles an hour; when the car struck Mrs. Lambeth she bounced up on the hood and from the hood to the windshield, and then tumbled off in the street to the left of the automobile; the car the defendant was driving kept going on north on the east side of the underpass; the last time I saw the car it went on through the underpass; I got out of my car and went and picked up the lady’s shoes and her bundles, one of which was a package of meat. I helped pick the woman up; she was badly bruised and was not breathing; she was laid on the curb and an ambulance called; a lady came out with a blanket and put it under her head. I am not sure how far it was from where the car struck Mrs. Lambeth to where her body was picked up, but I judge it was about 15 or more feet; I did not see the defendant, did not go up to where his car stopped. I saw some cars start out and follow the defendant.”

Witness was cross-examined at length, but his testimony was not changed on cross-examination.

Herman Baker was next called as a witness for the state and stated:

“I am 21 years old, lived at 3600 Northwest 12th street; I was carrying the Oklahoman and Times; I remember the occasion when Mrs. Lambeth was struck by an automobile and killed, at Tenth and Walker ; the accident happened about two o’clock in the afternoon, I was driving north in a 1933 Chevrolet; the first thing that attracted my attention was a truck honking at the car making too; much speed; the car was a Ford V8, and passed me on the north end of the viaduct; the Ford was making forty or 45 miles an hour, and the truck was not very far behind when they passed the Little Flower School, on Walker; I saw Mrs. Lambeth when the car struck her; the car carried her a ways before she fell off, her body went up in the air; she hit the pavement just. before she got to the underpass; I was on the north side of Tenth street.
“The Ford did not stop when it hit the woman, and did not stop when she fell off, it seemed like it picked up more speed after it hit her; I followed the Ford car and truck through the underpass; saw the Ford V8 hit a sign when it turned at the comer of the Washington School; the Ford V8 went up over the curbing and hit a telephone pole and made a sudden stop; he then acted like he was going to back out but could not; I went over to the car and saw the defendant, John Williams, there, he was the man that was driving the Ford Y8 that ran over the woman; there was a whisky bottle in the car, somebody grabbed it I did not know who the defendant was; he sat there in his car until one of the officers walked over to> the car' and took him out; I did not hear the defendant say anything; the officer arrived a few minutes after the defendant hit the school sign and telephone pole. When the officer took the man out of the car he stood up. I went down to' where the woman was and they had removed her remains in an ambulance. The last time I saw the whisky bottle some policeman had it in his hands. There was a strong whisky smell in and around the car. No one was in the car but the defendant. The defendant was driving about 50 miles an hour, and seemed to slow down a little after the accident, but gained it right back.”

On cross-examination the substance of the witness’ testimony ivas the same as on his direct examination.

George E. Williamson, called on behalf of the state, testified :

“I ivas a policeman at Walker, and Tenth, and the Union Depot southwest of 10th street; on south Walker there are two sets of tracks, and at Walker and Tenth there is a jog. On the afternoon of September 15, 1936, I was on duty and remember the occasion of Mrs. Lam-,’beth being killed; I was on the east side of Walker street, near a shoeshop, and saw her when the car hit her; I could not tell at the time whether it was a man or a woman; when the car struck her she was in the middle of the west side of the center of Walker; I saw the back of the car that struck her and thought it was a Ford; this was in a school zone and the speed limit was 15 miles an hour; the day she was struck was a school day; I judge the man was driving about 45 or 50 miles an hour; the car was going north in the middle of the street when' it hit the woman, her body went up in the air and came down on her head on the west side of the car, and the driver kept going.
“The car swerved back into' the line of traffic and went down under the underpass; some cars were following him, and I went to get an ambulance and called the police station; by the time I got to the scene of the accident they had carried the lady over to' the parking; I stepped over where the car hit the deceased, and to where she fell, and it was 71 feet; by the time I reached' her, after I had called the police station she was just breathing a little, she was bruised and had a hole in her head and one of her legs was broken. She was bleeding from the mouth and from the head.”

Homer Keith was called as a witness and testified on behalf of the state:

“I live at 504 South Walker; I am now 21 years old; was working for Bailey at 1021 .Southwest Walker on September 15, 1936, at a filling station; the station is on the north side of Tenth street and faces on Walker; I remember the occasion of Mrs. Lambeth being hit by an automobile; I was standing, at the filling station; about the time she got to the middle of the street the defendant hit her and dragged her something like 60 feet; he seemed to speed up after he hit her; after knocking and dragging her some 60 feet she rolled off the car; I do not know how to drive a car but I have ridden in cars. After he hit the woman he did not stop but speeded on across and Avent faster and on down Walker street under the underpass.”

K. L. Tomlinson was called as a witness for the state and stated:

“I live at 1017 South Walker; my barbershop was located at 1017 South Walker on the 15th day of September, 1936; I remember the woman being killed at Southwest Tenth and Walker; I saw a part of it; I knew the woman when I saw her; I did not see her that day prior to the accident; I had just walked out on my porch and was standing there when the accident occurred; my shop was on the west side of Walker street facing east; I did not see her until she was struck; I heard the noise, looked up and saw Mrs. Lambeth on the front of the car, on the left side of the hood lying back over the car, the car wasl going; I have observed traffic and ridden in cars, and in my judgment this car was making 45 or 50 miles an hour; it was a new black sedan or closed car, I could not tell the make of the car; when I first saw the car and heard the impact, the woman was on the car, the car threw the woman off on the north side of Tenth anywhere from 40 to 60 feet; I tried to catch the number of the car, but did not get it, then I ran up to where the lady was; the car that hit her pulled on to the other side of the street'and went through the underpass, it did not stop; several parties assisted me and we carried the remains of the lady over on the parking; she was cut across the head and blood was running from her eyes and ears when I picked her up; her left leg was broken, and she was unconscious.”

Albert Salazer, testifying for the state, stated:

“I am a music teacher, live at 1012 West Tenth street; I remember when the lady was killed at Tenth and Walker, on the 15th day of September, 1936; I was in the front yard working on my car; saw the lady come across the street from the grocery store with some packages under her arm; I saw her until she reached the middle of the street; before she started across the street she stopped and looked to the north and south, looked both ways, and) then started walking; there were two street car lines there where she started to cross, that makes four tracks; when she got to the third rail I saw the car hit her; I could not tell what rate of speed the car was making. I have been driving a car for 12 years, and in my judgment the car was making 45 or 50 miles an hour. The car hit the deceased and threw her in the air and she came down on her head; from the time the car struck her until she fell on the pavement she was carried about 50 feet and landed on the west side of the tracks; the defendant slowed down a little and then speeded up and went down under the underpass; I then went to the lady and tried to pick her up and get her off the street; she was wearing a light house dress; when I picked her up I learned her left side was injured, and I could not pick her up by myself; some other parties came and helped me, blood was running from her mouth; I could not tell whether she was breathing or not, she was relaxed and unconscious.”

K. B. Garrett testified he was a member of the Oklahoma police department; at the request of the county attorney he made a plat and map of Tenth and Walker, which shows the measurements from the sidewalks and streets, and also shows the distance involved in this lawsuit. The plat was introduced in evidence.

Edgar Lohner was called as a witness and testified, in substance:

“I am 26 years old and live at 514 South Dewey; I was a truck driver for the WPA on September 15, 1936; I was driving, behind the automobile driven by the defendant and saw the car he was driving, the car that struck the woman, the man had driven by me and caused me to pull over to the curb to let him pass. I had pulled over to the east curb.
“I was driving a long base 1933 Chevrolet truck; I was following the car, was about a short block behind him at the time he struck the woman. The man was driving a 1936 Ford Y8 sedan; the defendant here is the man I saw driving tbe car; after tbe defendant passed me he seemed to be nodding bis bead and drove on down tbe viaduct a little ways and pulled over to tbe left side of the street, be was plumb over on tbe wrong side of tbe street and waivered back to tbe east side of tbe street; I saw there was something wrong with him and pulled up by tbe side of him just before be drove off tbe viaduct and asked him to stop; be ignored my signal so I pulled in behind him and drove on down tbe street; it was somewhere in tbe neighborhood of tbe 300 block from tbe big bridge or viaduct to where tbe accident happened. I first saw the woman on tbe east curb of Tenth street stepping off tbe street to Walker; she was going west, Tenth street-does not go straight through; she was walking like anyone would stepping off tbe curb to cross tbe street; she was going straight across; when tbe man struck her she was almost to tbe second set of street car tracks on tbe west side of Walker street; I bad no speedometer on my truck and therefore could not tell bow fast the man was driving; after be struck the woman she came up in tbe air on tbe left side of tbe car, it threw her about three feet in the air, and he pulled back to tbe east side of the street and drove on; when tbe defendant struck tbe woman be was on tbe wrong side of the line of traffic and after be struck her be increased bis speed; I followed him because be ran over tbe lady and bad not stopped; as be drove up Walker there was some travel crossing tbe street that caused him to have to check up, and that is where I gained on him.
“I sounded my born, which gave me tbe right of way to go through; be started to make a left turn on Washington; I was driving in tbe middle of tbe street myself and made a left band turn shorter than he did which caused him to have to go up over the curb or bit me; be ran over tbe curb and bit a school sign that sets back on, tbe court and says, ‘School Zone. 15 Miles per Hour.’ He started to back out, but could not; I went down to tbe car and opened tbe door and told him be ran over a lady, and be said be did not even know be hit anyone; there was no one in tbe car with the defendant. He was not normal, there was something wrong with him, I don’t know what it was, he had the appearance of a drank man; I stayed there where the man had hit the school sign until the officers took charge of him.”

The witness was cross-examined at length by counsel for the defendant, but there was no change in his testimony given on direct examination as to what he saw the defendant do:

The state then offered testimony to prove that Mrs. Lambeth was dead; that the accident occurred in the city of Oklahoma City, and other witnesses were called on behalf of the state whose testimony was in substance the same as the testimony set out herein and it is not deemed necessary to set out other testimony at length. The testimony of the witnesses all shows that the defendant was driving on the wrong side of the street at an excessive rate of speed in a school zone at the time he struck the woman, and that he did not stop, but after he got away from the scene of the accident attempted to make a left turn off on Washington street, and the witness Lohner was following him in a truck and forced him up on the parking where he struck a school sign and stopped.

John Williams, the defendant, testifying in his own behalf, in substance stated as follows:

“I am 33 years old; have lived in Oklahoma practically all my life, was born in Stephens county; my business is working on a drill rig; have been engaged in the oil industry since 1919; I have drilled some, dressed tools some, and worked on the drill rig as a helper; my work has been confined to the oil fields since I was 16 years of age; my last work was for the Seibolt Drilling Company, near Crescent, Oklahoma; I was injured while working there; the injury was toi my right testicle; the end of an inch rope struck me; this injury incapacitated me for work and confined me to bed; Dr. Hood treated me; this injury occurred, on tbe 13th day of August, 1936, and I was in bed until the 28th day of August; the injury caused my testicle to swell and give me a world of pain and threw me into a fever. The doctor treated me with ice packs and tablets, then gave me some capsules, I don’t know what was in them; I lived about a half block from the doctor’s office; I last saw the doctor on the 14th day of .September, 1936, I asked his advice as to whether or not I should come to Oklahoma City; I owed some bills and had a compensation check at the Industrial Commission at the Capitol, and wanted to straighten up some bills I owed; I saw him about 7:30 that morning, and he said, ‘Go ahead if you can make it, but don’t be on your feet too much; if you get to suffering get some amytal and take it’; that was the first time I heard of amytal, I did not know what I had been taking. I came to Oklahoma City and went down to Mr. Newman’s Cafe on California avenue; I arrived there about nine o’clock and sat down in the place and begun to suffer; Bill Hensen came in and I asked him if he would get me some amytal, and he went out and bought some, and brought them back and gave them to me; I took two of them at that time; I remained in the cafe for more than an hour.
“I went to Capitol Hill and stopped at the Bams-dall Filling Station, on the corner of Twenty-Fourth and Robinson; called Martin at 3107 South Oklahoma, and asked if Taylor was there, the man that was on the stand a few minutes ago; I went down and picked Taylor up and we came down to the Moss Cafe; we drank a couple of bottles of beer and I taken two of those capsules, chased them with beer; I advised Mr. Taylor of my physical condition; I stayed around Capitol Hill for some time and drove over to a man’s house on Twenty-First street that Mr. Taylor claimed owed him some money; we failed to find the man, and, in the afternoon drove down to his sister’s house and ate supper and spent the night.
“The next morning I was still suffering great pain; I took some amytal tablets1 before we went to bed that night; I got up and took some more during the night and still eould not sleep soundly; about seven o’clock we went into the kitchen. Mr. Taylor ate breakfast and I took some coffee; I took two amytals; we left Taylor’s sister’s house the next morning and came back to Capitol Hill; since my injury, about a month prior to this accident I could not sleep but little on account of the pain, nor did I have any appetite.
“We then went to the Moss Cafe and I drank a bottle of beer and I had taken a couple of capsules, this was some time around nine or 9:30 in the morning; I stood around for some time and went down to a pig stand on South Robinson about half a block, after that we came back up in the middle part of Capitol Hill and sat there talking to one another for some time; about 10:45 or 11 I went back in the cafe and. drank one bottle of beer and I taken two more tablets.
“I then told Taylor I was going, to the Capitol to see if I had a check out there; he said he would stay and see if he found his boss; I did not find anybody at the Capitol; I was suffering and drove back to Capitol. Hill. I could not find Taylor, and my batteries were weak and I drove down on California to have them charged and drove into a pig stand and took a capsule, a capsule I found in these papers of the state insurance, the doctor had given me this capsule. I then started to town to get a room and go to bed. I pulled up on the viaduct and some one started cussing me, shaking his finger at me, and I practically did not know anything from then on; I did not remember killing the woman, I have a faint recollection of stopping on Washington, I don’t know much about it, do not remember being taken to the police station; I remember something about being examined by the physicians, Dr. Haygood and Dr. Mills; I do not remember what I told the doctors; I only know about drinking, four bottles of beer on the 15th, the day of the accident, and they were at different times through the morning and part of the afternoon; I did not drink any whisky on the 14th or 15th; I did not have any whisky or empty whisky bottles in my car; I have drank whisky but not much.
“I did not purposely or intentionally strike the woman with my car; I was not intoxicated or drunk on intoxicating liquor on the 15th, at the time of the accident.
“I have worked for a number of oil companies, the Carter Oil Company, Sinclair Oil and Gas, Wolverine Oil Company, and a number of contractors; I have never been discharged from the company I was working for; I was driving at the time of the accident a Ford Y8, I bought new in July, 1936; the car was in good repair and brakes in good condition; this car would run close to 100 miles an hour; I have no recollection of sideswiping Mr. Lohner’s truck nor of driving recklessly or carelessly on that date; I have never been charged with speeding or reckless driving in Oklahoma City.
“I did not know the woman was killed. My injury caused me to walk with my legs apart on account of my right testicle being swollen, to keep from hurting, to- a certain extent I walked spraddled out, the pain was practically all through my body, it caused me to be unsteady on my feet.
“The medicine administered to me caused me to have fever. I did not have any fever on the 14th or 15th' day of September, 1936; I would not have taken the amytal tablets had not the doctor prescribed them; I have never talcen any morphine or any other narcotic prior to my injury. I do not know where Mr. Hensen who purchased the amytals for me is now. I had a subpoena issued for him but he could not be found.”

On cross-examination the defendant stated he was driving a two-door sedan. Handed a picture of the car and asked if it was his car, he answered it was just like his car:

“My car was not in the condition that car is in when I saw it, nor was it in that condition when I got it back; there was no headlight off when the officers turned my car over to me, the headlights weare in perfect condition; I do not know who1 fixed the car, if it had been repaired; I got it back from Judd Black right after I got out of jail; it was turned over to me on October 5th, after the accident on September 15,1936; I do not know what shape it was in immediately after the accident on September 15; I do not know what I hit, I have a faint recollection of some kind of a noise; I did not tell anyone I was looking back to see what the truck was doing and hit the sign by reason of that fact. I do not know why I started to turn left at Washington street; I don’t remember seeing any car from 10th down to Washington following me and honking. My car will make 100 miles an hour, I have had it up to 97; I don’t know how fast I was driving nor do-1 know what side of the street I was on. I don’t remember crowding the truck into curb; I do not remember when he started after me nor do I remember swerving to the west side of the street on the wrong side of the road. I never saw the woman at all, I did not see her on my car, nor did I see her going up into the air; I do not remember my car hitting anything, the only thing I have any recollection of is of a noise; I was not drinking or drunk and was not trying to get away on that account; I know nothing about the whisky being in my car; I did not know anyone reached in and turned the engine off; I wasi not trying to get away or dodge anyone. I had not been in the car with anyone drinking whisky nor had I loaned my car to anyone. When I was in Crescent I kept the car parked in front of the hotel; in my life I have drank some whisky, I never have been drunk. I was never arrested and paid a fine in Seminole for being drunk; I don’t remember whether I was finger-printed at the city jail, I don’t remember talking to the doctors at the police station. I did not drink any whisky the day of the accident, only drank four bottles of beer. Before I left Crescent the doctor told me if I got to paining worse to get some amytal tablets; I came from Crescent to the city and reached here about nine o’clock the morning of the 14th.”

Several pages of the record are taken up with further cross-examination as to what the doctor said, and what he did before he came to Oklahoma City, and the number of amytal tablets he had taken prior to the accident, which it is not deemed necessary to set out in full.

Several witnesses testified to the defendant’s previous good character, as to where they had known him, where he was living, and where he was engaged in oil field work, all testifying they had never known or heard of his having any trouble.

In rebuttal E. L. Cartwright was called and stated he was a school police officer at Riverside and Catholic schools, at Eleventh and iSo-ut-h Walker, on the 15th of September, 1936; “it was part of my duty to watch the children come to school”; that he rolled the school signs into the street which said, “School. Slow. 15 Miles an Hour. Stay in Line.” He put these signs out at 8 a. m., and took them down at 9:05; then put them out at 11 and took them down at 1:05 p. m.; he put them out at 3 and took them down at 4:15. These signs have a metal base with a rod attached to the bottom so they can be set in the street.

“I was on duty the day of this accident. I get away after one o’clock for an hour for lunch. We took these signs out of the middle of the street at 1:05 p. m., and put them back on the parking; there was no sign in the middle of the street at 2 o’clock the day of the accident, I put the sign back out at 3 o’clock in the afternoon.”

The defendant, John Williams, was recalled and stated he never paid a fine of $19 in Seminole, Okla. The foregoing, is in substance the testimony of the state and the defendant.

The defendant for grounds for reversal of his case has assigned 15 errors alleged to have been committed by the court in the trial. The first proposition argued by the defendant is, “The verdict and sentence is not sustained by the evidence.”

The defendant, in arguing his first proposition, has at length set out the testimony taken in the trial of his case, and states in his brief that he deems it advisable to do so in order to have before the court the facts as testified to by the witnesses. The defendant earnestly insists in his brief that the evidence in this case is not sufficient to sustain the judgment. The defendant was tried on a charge of murder growing out of the facts as alleged by the state that he was drunk, driving a car upon South Walker street in Oklahoma City, Okla., and that by reason of that fact under the laws of Oklahoma he was committing a felony, and while driving at an excessive rate of speed, and while intoxicated, he struck •Mrs. Lambeth and killed her.

It is not denied by the defendant that he was the driver of the car that struck Mrs. Lambeth, from the force of which she died, nor is it denied he failed to stop when his car struck her, but that he drove on down the street and sought to make a turn on Washington street when one of the witnesses, Mr. Lohner, cut the center of the street in his truck and forced the defendant’s car on the curb, where it struck a school sign and stopped. The defendant denied he had drunk any whisky, or anything that was intoxicating; he admits he drank four bottles of 3.2 beer that morning before the accident, and' up to the time he started up Walker. His main defense is that he had received an injury to one of his testicles about a month prior to the date of the accident and his doctor prescribed amytal tablets for him, and he claims that before the accident he was in great pain from his injury and that he had taken several of these amytal tablets, and became very stupid and his mind beclouded to such an extent that he did not recollect what he did, and that he did not know he had struck a woman until advised of it after he was placed under arrest. The defendant also offered testimony by reputable witnesses showing his previous good character, and the doctor testified that the defendant had been injured and that he prescribed amytal tablets for defendant to take..

We cannot agree with the defendant in his argument that the verdict of the jury is not supported by the evidence and is contrary to' the law. The testimony of the state’s witnesses shows that the defendant had the odor of whisky on his breath, and a bottle was taken from his car which had the odor of whisky in it, and at the time he struck the woman he was driving at an excessive speed in a school zone which limits the speed to 15 miles an hour. The only testimony to the contrary is the testimony of the defendant. He admits that at the time he struck the woman and up until he was being examined by the doctors or some of the officers he had no recollection as to what had taken place along Walker street where he had driven. It is evident, from the verdict returned by the jury, the jury did not believe the defendant was testifying to the truth, and by its verdict harmonized the conflict betAveen the state’s witnesses and the defendant and decided against the defendant, and returned its verdict of guilty of murder, imposing life imprisonment, the minimum punishment that can be imposed upon a defendant when convicted of murder.

The question of the sufficiency of the evidence has been before this court many times, and the court has universally held that where there is any competent evidence which reasonably sustains the verdict and judgment, a conviction will not be reversed although the evidence may be conflicting or different inferences may be drawn from it.

Section 3206, O. S. 1931, 22 Okla. St. Ann. § 1068, is as follows:

“No judgment shall be set aside or new trial granted by any appellate court of this state in any case, civil or criminal, on the ground of misdirection of the jury or the improper admission or rejection of evidence, or as to error in any matter of pleading or procedure, unless, in the opinion of the court to which application is made, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.”

All the evidence, and the circumstances surrounding the actions of the defendant, clearly show an utter disregard for human life, and further show that he was maudlin drunk and unable to or did not try to control his car or respect the rights of others on the streets of Oklahoma City; that he was driving in a fast and reckless manner endangering the lives of others.

In Tillery v. State, 23 Okla. Cr. 226, 214 Pac. 198, in the second paragraph of the syllabus, this court stated:

“When the sufficiency of the evidence is challenged, and the evidence as a whole does not satisfactorily or conclusively convince the appellate court of the guilt of the accused, the verdict will not be set aside on the ground of tbe insufficiency of the evidence, where, as in this case, there is some substantial evidence tending to support the verdict. The weight of the testimony and the credibility of the witnesses is for the jury.” Taylor v. State, 21 Okla. Cr. 351, 207 Pac. 746.

The jury is the exclusive judge of the weight of the evidence, and if there is a conflict in the evidence or the evidence is such that different inferences can properly be drawn from it this determination will not be interfered with unless it is clearly against the weight of the evidence, or it appears to have been influenced by passion or prejudice. Choate v. State, 37 Okla. Cr. 314, 258 Pac. 360; Clemmer v. State, 56 Okla. Cr. 354, 40 P. 2d 37; Holford v. State, 57 Okla. Cr. 431, 48 P. 2d 1082; A. G. Goodnight v. State, 62 Okla. Cr. 382, 71 Pac. 2d 789; and John Coppage v. State, 62 Okla. Cr. 325, 71 P. 2d 509.

There is nothing in the record to show that the verdict of the jury is against the weight of the evidence nor does the record show that the jury was influenced by passion or prejudice. After a careful study and examination of the entire record we hold the evidence is sufficient to sustain the judgment.

The next proposition that it is deemed necessary to consider is the 12th assignment of error:

“That the court erred in failing to instruct the jury upon the theory advanced by the plaintiff in error in his said defense, all of which was prejudicial to the rights of the plaintiff in error.”

An examination of the record shows that the defendant offered 6 special instructions, all of which were refused by the trial court, and the defendant saved an exception. An examination of these requested instructions show that neither of them correctly stated a proposition of law as applied to the facts before the court, and that the refusal of the court to give the instructions requested was not error.

The question then is, the defendant having invited the attention of the court to the theory of his defense and requested certain instructions along the line of his defense, did the court in his general instructions correctly and sufficiently instruct the jury upon the theory of the defendant’s defense, that is, that he was under the influence of amytal tablets and did not know what was going on and could not remember having had an accident and striking the woman who was killed. The court in its general instructions gave to the jury instruction No. 14, which is as follows :

“You are instructed that all persons are presumed to be of sound mind until the contrary is shown, and all persons are capable of committing crime except insane persons or persons of unsound mind, including persons temporarily or partially deprived of reason, upon proof that at the time of committing the act charged against them were incapable of knowing, its wrongfulness, and in that regard, if you find from all the evidence in this case that the defendant was temporarily or partially deprived of reason and was therefore rendered incapable of knowing the wrongfulness of any of the material elements of the offense charged, or of any of the included offenses, or if you entertain a reasonable doubt thereof, you must give the defendant the benefit of the doubt and acquit him.”

After carefully considering the instructions given by the court on its own motion, it is shown that they are the usual instructions given in cases where the defendant is charged with murder, and they correctly state the law applicable to the facts in this case, and are as favorable to the defendant as the evidence in the case will warrant. It is not error for the court to refuse requested instructions if the law covered by the requested instructions is fully and fairly covered by the court’s general instructions. Hamilton v. State, 38 Okla. Cr. 62, 259 Pac. 168; Wheat v. State, 38 Okla. Cr. 119, 259 Pac. 279.

The defendant complains of other errors committed by the trial court. An examination of the record discloses that the other errors complained of are without sufficient merit to require a separate discussion in this opinion. The facts in this case show that the defendant willfully, carelessly and negligently, Avhile under the influence of intoxicating liquor, drove his car at an excessive rate of speed within a school zone upon South Walker street, in the city of Oklahoma City, disregarding' the right of the public and with a depraved mind. His action endangered not only the life of the woman killed, but all others that might be upon the street at the time, and showed that the defendant wholly disregarded and violated every principle of the rules of the road and the laws of our state, and in doing so he committed willful murder. The jury was lenient with the defendant and returned its verdict of guilty of murder but imposed the lightest punishment that could be inflicted upon the defendant when convicted of murder.

The defendant was accorded a fair and impartial trial. The instructions of the court substantially covered all the issues raised in the trial of the case. The evidence is sufficient to sustain the conviction. Finding no errors in the record warranting a reversal, the judgment of the trial court is affirmed.

DOYLE and BAREFOOT, JJ., concur.