text:
    F. L. LEWIS v. STATE.
    No. A-9874.
    Nov. 12, 1941.
    (119 P. 2d 91.)

      W. J. Crump and Henry O. Boatright, both of Muskogee, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Baltimore, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, F. L. Lewis, was charged in the district court of Muskogee county with the crime of forgery in the second degree, was tried, convicted and sentenced to serve a term of three years’ imprisonment in the State Penitentiary; and he has appealed to this court.

There are many assignments of error presented by the defendant in his brief. Assignment, of error No. 10, as will be hereinafter discussed, will have to be sustained because of a grave infraction of the rules of procedure which appears to have prejudicially affected the substantial rights of the defendant.

In view of the necessity of a retrial of this case, we shall make a short statement concerning the various other propositions raised by counsel for defendant in their brief, which appear to this court of sufficient importance to merit a statement; otherwise, the same questions might be raised on a retrial of the case.

It is first contended that the court erred in overruling the demurrer of the defendant to the information for the reason that the information failed to allege that Swift & Co., to whom it is alleged the forged instrument was delivered by the defendant, was a corporation.

We have recently held in the case of Burns v. State, 72 Okla. Cr. 409, 117 P. 2d 144, that it is not necessary to allege the name of the person to whom the forged instrument is uttered where a copy of the forged instrument, with endorsements thereon, is copied in full in the indictment, and the other essential elements of the offense are fully stated in the indictment.

In Reniff v. State, 53 Okla. Cr. 448, 13 P. 2d 592, this court held that, where the information charged the forged instrument was negotiated with the “Lawton Tire Company,” and the proof showed that the check was delivered to- the “Lawton Tire Shop,” the variance was immaterial.

We find the court correctly overruled the demurrer' of the defendant to the information filed herein.

It is next contended that the evidence is; insufficient to sustain the verdict.

We find, after a careful examination of the record, that the evidence introduced by the state is amply sufficient to support the conviction.

It is next contended that the court erred in giving instruction No. 6, which was the instruction on circumstantial evidence.

We have read this instruction; and, while we do not think that this instruction is susceptible of the construction which the defendant has placed upon it, in a retrial of this case the court should eliminate that part of the instruction which reads as follows: “* * * that is to say: no person has taken the witness stand and testified that he saw the defendant write the name of J. J. Hogans on said bill of exchange in question in this case.”

The counsel for defendant further lay great stress upon the letter “a” in front of circumstantial evidence, in the latter part of the instruction. We feel that this is a typographical error and inadvertently placed in said instruction; and, of course, the same should be eliminated.

The defendant was not charged with forging J. J. Hogans’ name on the hill of exchange, hut he was charged with uttering the instrument after the same had been forged, knowing that the same was forged. For1 that reason, the first part of the instruction above quoted should be eliminated.

Assignment of error No. 10 is as follows:

“The court erred in visiting the jury while said jury was in its room considering of its verdict in this case, and in conversing with at least one member of the jury, all of thisi being done without the knowledge or consent of the defendant or either of defendant’s attorneys, as shown by the record in this, case.”

Assignment of error No. 11 is as follows:

“The court erred in permitting the jury to' separate at the noon hour after the case had been finally submitted to- said jury, and after said jury had been deliberating and considering of its verdict for some time. Said jury being permitted to separate by the court without the consent of the defendant or either of defendant’s attorneys.”

These two assignments, were discussed together by counsel for defendant in their brief; and, because the proof in connection with these two assignments was presented at the same time, we shall likewise discuss the two assignments together.

The record discloses the following:

“(Thereafter’ the hour of twelve o’clock noon, having arrived the jury isi returned into Court in charge of their sworn bailiff, and the following proceedings were had and done, to wit:) The Court: Gentlemen of the Jury, have you agreed upon a verdict? A Juror: No, sir, we have not. The Court: Now, don’t tell me how you stand but the numerical ratio. A Juror: Ten to two. • The Court: Do: you think there is a possibility of agreeing upon a verdict? A Juror: I don’t know, there might be. The Court: Well, I am going to permit you to go and get yo-ur lunch. In the meantime don’t permit anybody to talk to- you about the case or in your’ presence or hearing, If anyone approaches you and attempts to’ talk about the case tell them you are on the jury and you can’t talk to them and if they insist in it get their names and give them to the court and the court will take care of that. The court does not want any irregularity in this trial. So' you may go now.
“(Whereupon the jury are permitted to separate and get their lunch, and thereafter retire to their juryroom to* consider further of their verdict.)
“(Whereupon court took a recess until one O'’clock p.m. at which time court reconvened in regular’ session, the plaintiff, State of Oklahoma, appearing by its counsel as heretofore, and the defendant present in his own proper person and by his attorney of record, whereupon the following, proceedings were had, to wit:)
“Mr. Crump: Comes now the defendant and states and shows to the court that after1 the jury was permitted to separate during the noon hour and after the case had been finally submitted to the jury counsel for the defendant received information to the effect that the judge of this court who presided at all times during the trial of this case went to the jury room at some time before It was discharged for the noon recess and talked to at least some members of the jury, and that this was done without the' knowledge or consent of the defendant or either one of his attorneys. We have no information as to what was said by the judge to the jurors, except the judge himself has stated to me, W. J. Crump, what he did state to the jury, and the defendant therefore asks- now that the case be withdrawn from the jury and that the jury be discharged and a mistrial ordered.
“Now, may the record show that you did go< to the jury room and talk to some of the jurors in the absence of counsel?
“The Court: The record may show in response to the motion of counsel for the defendant, I may say, that I, O. H. P. Brewer, judge of the district court, who presided at all times during the trial of the case now in question, advanced to the jury room at the noon hour, 12 o’clock and knocked on the door and one man came to the door after the door was opened by the bailiff and I inquired if the jury had reached an agreement, and was informed that they had not. -I told them that the hour of noon had arrived but I would retire to my chambers and leave the matter with them a few minutes and if they could not agree then I suggested they should come down and report to the court and we would recess for the noon hour. About the hour of twelve-ten or-fifteen the jury did report to the courtroom and made their report and they were recessed until the hour of one p.m. The motion of counsel for the defendant is heard and denied.”

After the jury had rendered their verdict finding the defendant guilty, the defendant, through his counsel, filed a motion for a new trial, setting up, among other things, these two assignments of error.

The county attorney, acting in accordance with the holdings of this court in Sealy v. State, 59 Okla. Cr. 104, 56 P. 2d 903, and other cases, in which we have held where the jury is permitted to> separate after final submission of the case to them, that the defendant is entitled to the! presumption that such separation is prejudicial to him, and the burden is on the state to make a showing that such action did not, in fact, prejudice the defendant; accordingly, the county attorney had each of the jurors sworn and questioned separately concerning their activities during the time they were separated. When the first juror was called as a witness and examined by thel county attorney, counsel for the defense, after' questioning the juror, Breedlove, concerning his actions during the noon hour while the jurors were permitted to separate, further sought to question the juror concerning the conversation which was had with the presiding judge, when the judge came to the jury room and spoke to the! jury, in the absence of the defendant and his counsel, to which question the court sustained an objection by the county attorney that such question was improper cross-examination.

The record then discloses that the following occurred:

“Mr. Crump: Well, I will offer to make him my own witness on that proposition, if - your Honor thinks it is improper cross-examination. You sustain the objection? The Court: Yes. Mr. Crump: We except. I now ask to make the witness our own witness and ask him what happened when Judge Brewer went to the jury room. Mr. Garrett: To which the state excepts for the reason that — objects for the reason that the matters he is attempting to go into with this witness are set out in detail and in his argument on his motion for new trial and the jury was not called in for that particular matter, only as to whether the rights of the defendant were prejudiced by being allowed to separate during the noon hour. The Court: I think so, Judge Crump. I will have to sustain it. Mr. Crump: Well, give us an exception, please. Now, if your Honor please, I don’t want to be discourteous or anything. May the record show from each juror —each witness who was a member of the jury, that the record made here is what occurred when your Honor went to the jury room, is made as to such witness? The Court: Yes.”

As to' assignment No. 11, each of the jurors testified at length that no one talked to them about the case during the recess when they were allowed to separate, and that they did not hear the case discussed by any one, and that nothing happened which in any way influenced them in arriving at a verdict.

We think such a showing was sufficient on the part of the state to overcome the presumption that the defendant was prejudiced by reason of such action.

As to assignment No-. TO, the Attorney General confesses in his brief that the court erred in going, to the jury room, in the absence of the defendant and his counsel, and discussing the case with the jury, and further erred in refusing to allow defendant’s counsel to question the jurors as to' what the judge said to them when he came to the jury room; hut it is contended that such action, when considered together with the record in this case, shows that the defendant was not prejudiced by reason of anything that was said or done, and that said error, accordingly, is harmless.

From Ridley v. State, 5 Okla. Cr. 522, 115 P. 628, 630, we quote the following:

“The question presented is whether such misconduct is sufficient to require the court to' set the verdict aside and grant a new trial. It is of the utmost importance that jurors and court officials should be held to a strict observance of the provisions of law prescribing their procedure and duties, and their conduct should be such that no' possible suspicion can attach to' them of having acted in a manner prejudicial to the accused, or in his favor. If there was a disagreement between them, or if they were doubtful as to' how they should proceed, they should have required the officer in charge to conduct them into court, and the necessary information would be given by the court in the presence of the parties. It will be presumed, in the absence of anything to the contrary, that, the rights of the defendant were prejudiced by the action of the jury and clerk of the court in disregarding and failing to1 observe the requirements of the statute. Courts cannot be too' strict in compelling a rigid and vigilant observance of the provisions of the statutes designed to preserve inviolate the right of trial by jury and the purity of jury trials. We deem it unnecessary to consider the other assignments.”

See, also, in this connection the following Oklahoma cases: Watson v. State, 7 Okla. Cr. 508, 124 P. 329; Selstrom v. State, 7 Okla. Cr. 345, 123 P. 557; Thomas v. State, 13 Okla. Cr. 414, 164 P. 995; Henderson v. State, 18 Okla. Cr. 611, 197 P. 720; Montgomery v. State, 19 Okla. Cr. 224, 199 P. 222; Walter v. State, 29 Okla. Cr. 221, 233 P. 240; Bennett v. State, 42 Okla. Cr. 264, 275 P. 390; Grable v. State, 60 Okla. Cr. 339, 44 P. 2d 152; Raab v. State, 62 Okla. Cr. 361, 71 P. 2d 773, 778.

In the recent case of Raab v. State, supra, it is stated:

“Not only do- the Oklahoma cases uphold this doctrine, but the generally accepted view is that it is reversible error for the trial judge in a criminal case to communicate with the jury or any member thereof, except in open court and in the presence of the defendant and his counsel; the basis of such ruling being, that the accused shall have the right of a public trial and the right to be present during all stages thereof. There are some decisions which hold that it is necessary to show prejudicial error, but many of these cases are civil cases, and many of them are based upon peculiar statutes different from what we have in Oklahoma. The oldest and one relied upon by many authorities in establishing this principal was the case of Sargent v. Roberts, 1 Pick. (Mass.) 337, 11 Am. Dec. 185. The court says:
“ ‘And we are all of opinion, after considering the question maturely, that no communication whatever ought to take place between the judge and the jury, after the cause has been committed to them by the charge of the judge, unless in open court, and, where practicable, in presence of the counsel in the cause. The oath administered to the officer seems to indicate this as the proper course: “He is to suffer no person to speak toe them, nor toi speak to- them himself unless to ask them whether they are agreed;” and he is not to suffer them to separate until they are agreed, unless by order of court. When the court is adjourned, the judge carries no power with him to his lodgings, and has no more authority over the jury than any other person; and any direction to them from him, either verbal or in writing, is improper.’ ”

Oklahoma is not as strict as many states in regard to this matter; but we are committed to the doctrine that, when the trial judge communicates with the jury, outside of the courtroom, in the absence of the defendant or . his counsel, such conduct is presumed to be prejudicial to the defendant, and the burden is upon the state to show that the defendant was not prejudiced by reason of such misconduct. Here, we find the state not even attempting to. uphold the burden in connection with this assignment. They did subpoena the jurors for the purpose of testifying in connection with the question as to whether the defendant was prejudiced by reason of the separation of the jury after the final submission of the case. But when defendant, through his counsel, seeks to question the jurors concerning the conversation had with the trial judge, the county attorney objected, and the trial court very promptly sustained his objection.

Since the conduct of the trial judge was being questioned, he should have been anxious, to have a full, free, and frank statement from each of the jurors as to what occurred when he came to the jury room and communicated with them, so as to' conclusively show that the defendant could not have been prejudiced.

The trial judge is an honorable member of the judiciary; and with our past knowledge of his fairness to all parties in the trial of criminal cases, we are quite certain that the court did not intend to say or to- do' anything which might prejudice the defendant. As was said in the case of Watson v. State, supra [7 Okla. Cr. 508, 124 P. 330]:

" * the wisest and best judge, when acting on the spur of the moment during, a trial, sometimes makes a mistake.”

We think the language used by the court in the case of State v. Wroth, 15 Wash. 621, 47 P. 106, 107, is applicable to- the facts in the instant case. It is there stated:

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

In Raab v. State, supra, Judge Barefoot reviewed the authorities at length in connection with this proposition, and reference is made to that case for a very able and extended discussion of this question.

We cannot agree that this error is harmless error.

For the reasons hereinabove stated, the judgment of the district court of Muskogee county is reversed with instructions; to grant defendant a new trial.

BAREFOOT, P. J., and DOYLE, J., concur.


source: Caselaw Access Project

author: JONES, J.

license: Public Domain

text:
    GORDON MITCHELL v. STATE.
    No. A-9876.
    Nov. 12, 1941.
    (119 P. 2d 99.)
    Laynie W. Harrod, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   JONES, J.

The defendant, Gordon Mitchell, was charged by information in the county court of Canadian county, on January 3, 1940, with the offense of transporting intoxicating liquor, was tried, convicted and sen-fenced to serve a term of 60 days in tbe county jail and to pay a fine of $100, and appeals to this court.

Counsel for defendant contends that tbe evidence used by tbe state was obtained by an unlawful search and seizure.

Tbe state introduced evidence showing that on January 2, 1940, I. A. Floyd, a city marshal, and H. H. Clapper, an undersheriff, saw defendant driving west from Oklahoma City toward Yukon, at about 8 o’clock at night. One of the headlights on his car was not burning. The officers stopped him to warn him. Clapper went to- the left side of the car, and Floyd to the right. The outside handle of the door on the side which Floyd approached was broken off. Defendant opened the door from the inside, and a number of bottles of whisky in the front seat were exposed to- the view of the officer.

Defendant testified in substance as follows: That his lights were burning on dim, and that the handle was not broken; that Floyd opened the door himself, looked in the car, and asked what was in the box in the back seat. Defendant had forgotten that the box was back there, and told the officers that he did not know wha,t was in it. They asked if he cared for their looking in the box. He told them to use their own judgment. They opened the box, which was closed, and found the whisky.

Under the testimony offered by the state, the officers could have lawfully arrested the defendant for driving with only one headlight under section 10331, O. S. 1931, 47 Okla. St. Ann. § 131, which they did not do, but only stopped him and warned him. The whisky was in plain sight when defendant opened the car door, and they arrested him for the misdemeanor of transporting liquor, committed in presence of the officers.

The burden was upon tbe defendant to show, on bis motion to' suppress tbe evidence, that be was not violating1 section 10331, supra, which malees driving upon tbe state highways with only one headlight a misdemeanor, in order to show that he was unlawfully stopped. As set out above, there was a conflict of testimony upon this.

This court will noit reverse the findings of the trial court upon a question of fact, where there is a conflict of evidence, and there is competent evidence in the record reasonably tending to support the findings of the trial court.

Since the court found from the evidence that defendant was not illegally stopped, there can be no question as to the legality of the search and seizure, even under defendant’s account of it, in which he waived any objections to the officers looking into the box of whisky.

In Camp v. State, 70 Okla. Cr. 68, 104 P. 2d 572, this court held, where officers ask and are given permission to examine a package in an automobile, such permission on the part of the accused constitutes a waiver of his constitutional right to immunity from a search and seizure without a search warrant.

There is no merit to defendant’s contention.

The judgment of the county court of Canadian county is affirmed.

BAREFOOT, P. J., and DOYLE, J., concur.


text:
    W. E. SAWYER v. STATE.
    No. A-9880.
    Nov. 19, 1941.
    (119 P. 2d 256.)

      Walter Hubbell, of Walters, for plaintiff in error.

      Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant was charged by an indictment presented and filed by a grand jury of Cotton county with the crime of embezzlement, was tried, sentenced to serve three years in the State Penitentiary, and' pay a fine of $263.64, and he has appealed to. this court.

The indictment charges the defendant with having, on or about the 4th day of July, 1933, while acting as treasurer of the city of Walters school district No>. 1, of Cotton county, embezzled the sum of $131.82 belonging to said school district.

It is first contended that the court erred in sustaining an objection by the state to’ evidence offered by the defendant concerning a compromise settlement between the county attorney and the defendant, wherein it was contended by the defendant that the state had agreed to dismiss the present case upon condition that the defendant plead guilty in two other cases then pending.

The record discloses that the same contention was set forth by the defendant in a motion to dismiss, presented to the court before the trial began.

Evidence was introduced by the defendant in support of his. motion to' the effect that on the 31st day of October, 1938, he had four felony cases pending in the district court of Cotton county. That he had a discussion with the county attorney and the Assistant Attorney General, wherein it was agreed that if he would enter’ his plea of guilty in two> of said cases, and receive a four-year sentence in each, the sentences to run concurrently, that the other two cases then pending against the defendant would be dismissed. That in pursuance to this agreement and understanding, the defendant entered his pleas of guilty in cases Nos. 648 and 653, and was sentenced to- serve four years in the State Penitentiary in each of said charges, with the further provision that said sentences would run concurrently. That he was immediately committed to the State Penitentiary and served until the 7th day of January, 1939, at which time he obtained a parole from the Governor of the State of Oklahoma.

The Assistant Attorney General testified in response to- the proof of the defendant on said motion to- dismiss that negotiations were had both with the defendant and his attorney in the office of the county attorney; that the cases were set: for trial at that time; that so- far as the Attorney General’s office was concerned, he agreed that if the defendant would plead guilty in the two- perjury charges, he would recommend a sentence of four years each, which might run concurrently. That the attorney for the. defendant then asked if they would thereupon dismiss the remaining cases, to which the Assistant Attorney General replied they would not do- so, as they had been unable to- keep a convicted public official in prison under the Marland administration, and they were going to hold these cases back as a guaranty against a parole. That they did agree that if the defendant would plead guilty in the two -cases and serve the full time on those two- sentences, the other cases, would not be pressed and would ultimately be dismissed.

In connection with this contention of the defendant, the court dictated the following statement into the record:

“The court desires to make this statement in the record. That the court is not familiar with all o-f the negotiations that were had by the various parties for the reason that the court was not present at all the time. The court was present during a portion of the discussion between the defendant and his attorney and the county attorney and the Assistant Attorney General, but that at no1 time in the presence of the court was any specific promise made of a specific dismissal of the cases in question, nor was any approval of the specific dismissal of the case at bar ever made by the court.”

The attorney for the defendant admits in his brief that such an agreement, if made as contended by the defendant, would not be a defense to the charge for which he was being tried.

Of course, if the matter is not a defense to the charge, there is no legal- foundation for the submitting of the same to the jury. The facts were submitted fully to the court in the hearing upon the motion to dismiss. The court in passing upon said motion evidently accepted the version of the Assistant Attorney General as being correct as to' the result of the conference had with the defendant and his attorney, and overruled the motion to dismiss.

While this contention may not properly be a matter1 of defense, we feel it proper to state that this court would unhesitatingly reverse this case if the record had disclosed that an unfair advantage had been taken of the defendant by inducing him to enter a plea of guilty in two cases under a promise that two other cases would be dismissed, which agreement was made in the presence of the court with his silent acquiescence, if not expressed consent, but the record herein does not1 support such a state of facts.

The defendant next contends that the court erred in denying his application for a change of judge. Defendant made an affidavit to the effect that the trial judge had been present during part of the discussions, the result of which he entered his pleas of guilty in two' perjury cases, and had stated that there was no- agreement that the embezzlement cases, including the present case, should be dismissed upon the pleas of guilty in the other cases.

Section 2911, O. S. 1931, 22 Okla. St. Ann. § 571, is the applicable statute relating to disqualification of judges. There was no allegation in the application to disqualify the trial judge which would have brought it within the terms of this statute. There was noi claim in the application presented to the court, and it is not now contended by the defendant in his brief before this court, that the judge was prejudiced against the defendant, but they apparently rely upon the single proposition that the judge should be disqualified because he knew something of the negotiations had between counsel for the state and the defendant concerning the pleas of guilty entered in the former cases, and did not sustain the defendant’s motion to dismiss.

In State ex rel. Nowakowski v. Lockridge, 6 Okla. Cr. 216, 118 P. 152, 154, 45 L.R.A., N.S., 525, Ann. Cas. 1913C, 251, this court stated:

“* * * in order to disqualify a judge, it must be shown that he is biased against, or entertains ill will or hostility toward, the defendant, of such a character as might prevent him fiom giving the defendant a fair trial.

In 30 Am. Jur. 82, p. 790, it is said:

“Personal knowledge of a judge of former proceedings before him is not a disqualification, nor is he disqualified to sit in a criminal case because he has recently sat at the trial of another cause growing out of the same state of facts, which resulted in a conviction.”

No bias or prejudice is shown on the part of the trial judge, and no error was committed in refusing to sustain the defendant’s, application for change of judge.

It is next contended that; the court erred in admitting evidence on behalf of the state concerning a shortage in the school funds of some $6,800, from May, 1932, to February, 1936, while J. T. Sawyer, brother of the defendant, was treasurer of the school district, and further erred in admitting evidence of a shortage of $400 during the period from February, 1936, to September, 1937, which was the period of. time after the death of defendant’s brother, J. T. Sawyer, and a period when the defendant was officially appointed treasurer of the school district. The court also admitted in evidence proof that the defendant did not furnish a bond to1 the school district as required by law, although he furnished a certificate to the county clerk that he had, in fact, furnished such bond.

The proof of the state was to the effect that while the defendant’s brother, J. T. Sawyer, was the duly appointed and official treasurer of the school district during the period from May, 1932, to the death of J. T. Sawyer, in February, 1936, the defendant was the clerk of the school district, actually had charge of the treasurer’s books, and did all of the work of the treasurer, including the registering of the warrants in the name of his brother, J. T. Sawyer, during this period. That after the death of his brother, the defendant was. appointed treasurer, but did not give a bond as required by law.

The Avarrant involved was payable to the school district as transfer fees from another school district. The defense offered in this case was that the defendant cashed; the $131.82 warrant in question and turned the proceeds over to the president of the school board to pay certain laborers performing Avork on the school grounds cash for their services. That, although such procedure might not be technically authorized by law, the defendant was acting in good faith, and that the school district received the full benefit of the proceeds from the said warrant.

The evidence objected to by the defendant in connection with this assignment of error was brought out on cross-examination of the defendant. The state, by its cross-examination, showed by admissions of the defendant that he had presented a false certificate to the county clerk, reciting that he had complied with the law in furnishing a bond to the school district in the sum of $10,000, so as to legally authorize the county clerk to deliver war-rants belonging; to the Walters school district to the defendant as school district treasurer. The defendant further admitted the shortages in the sum of $6,800 and $400, as disclosed by the audit made by the examiner. No explanation of these shortages was attempted by the defendant.

With the question of good faith on the part of the defendant, in his handling of the warrant in dispute, of primary concern, the method of defendant’s handling of the school district funds in other1 particulars became of importance as to whether it would tend to show a guilty scheme or plan on the part of the defendant to embezzle funds of the school district and the intent with which the acts alleged by the state to have been illegal were performed.

Under the theory of the state, the embezzlement of the particular Avarrant set out in the indictment was only a part of a general scheme of unlawful transactions had by the defendant during the period Avhen he Avas the official treasurer or during the period when he acted as treasurer for his brother.

We think this evidence of a shortage in the defendant’s accounts as treasurer was competent and comes within the rule that proof of other offenses may be admitted in evidence upon the trial of the defendant where the same was a part of a general system, scheme or plan, and to prove the intent with which the act alleged to* have been perpetrated was done. State v. Rule, 11 Okla. Cr. 237, 144 P. 807; Reniff v. State, 53 Okla. Cr. 448, 13 P. 2d 592; Boyer v. State, 68 Okla. Cr. 220, 97 P. 2d 779; L. Jones v. State, 69 Okla. Cr. 244, 101 P. 2d 860; Burns v. State, 72 Okla. Cr. 409, 117 P. 2d 144.

Lastly, it is contended that the evidence is; insufficient to support a conviction.

This action was. instituted under the provisions of section 7761, O. S. 1931, 19 Okla. St. Ann. § 641, which relates to embezzlement by public officials. The state proved that the warrant for $131.82 was delivered to* the defendant, that he cashed the warrant at the county treasurer’s office, and that there is no record in the books of the school district showing the disposition of the proceeds of said warrant; and it iis not accounted for in any manner by any of the books or records furnished to the State Examiner who made an audit of the school district books.

The defense that the warrant was. cashed and the proceeds delivered to the president of the school board to pay certain workmen in cash so that they would not have to wait for their money was very indefinite. The president of the school board testified that the defendant left money at his store to* pay workmen sometimes, but he could not recall the amount's. He further testified that no claim was. filed by the laborers in connection with their work nor any record kept as to* how much money was disbursed.

Charles Cox testified that he performed work on the school grounds during the summer of 1933; and that Mr. Burgess, the president of the school hoard, paid him in cash for his work. He did not know how much was paid to him, and no estimate of the amount which he received Avas given.

This testimony merely raised an issue for determination by the jury. On account of the indefinite nature of this evidence, it evidently was not given much credence by the jury as they returned their verdict of guilty.

After an examination of the entire record of this case, we are convinced that the defendant had a fair and impartial trial, and that there are no- errors in the record of sufficient importance to require a reversal of this case.

It is accordingly affirmed.

BAREFOOT, P. J., and DOYLE, J., concur.


author: PER CURIAM.

text:
    HORACE CANADY v. STATE.
    No. A-10066.
    Nov. 19, 1941.
    (119 P. 2d 256.)

      Jim B. Barnett, of Oklahoma City, for the defendant.
    Mac Q. Williamson, Atty. Gen., J. Walker Field, Asst. Atty. Gen., and Lewis R. Morris, Co'.. Atty., for the State.
   PER CURIAM.

Horace Canady was convicted of the crime of unlawful possession of intoxicating' liquor^ to wit: two1 and one-half pint’s of tax-paid liquor, in the court of common pleas of Oklahoma county and his punishment assessed at a fine of $50 and BO days imprisonment in the county jail.

Defendant appealed to this court on the 6th day of May, 1941, but no' brief has been filed in support of his assignment of errors. This case was submitted on the 13th day of November, 1941, after notice was given to attorneys, on motion to dismiss by the Attorney General. The defendant has made no request for additional time to brief, although the time permitted by the rules of this court expired more than six months ago:

Rule 9 of this court provides:

“When no counsel appears, and no briefs are filed, the court will examine the pleadings, the instructions of the court, and the exceptions taken thereto, and the judgment and sentence, and if no> prejudicial error appears, will affirm the judgment.”

A careful examination of the record reveals no< error prejudicial to the rights of the defendant. The judgment of the court of common pleas of Oklahoma county is therefore affirmed.


author: BAREFOOT, P. J.

text:
    Ex parte W. C. JONES.
    No. A-10148.
    Nov. 19, 1941.
    (119 P. 2d 254.)
    B. C. Franklin, of Tulsa, for petitioner2.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for tbe State.
   BAREFOOT, P. J.

Petitioner, W. 0. Jones, who is now confined in tbe penitentiary at McAlester where be is serving a sentence of life imprisonment from Tulsa county, Okla., upon a conviction of manslaughter in tbe first degree, has filed bis petition for writ of habeas corpus. His contention is that on tbe 16th day of August, 1933, an information was filed in tbe district court of Tnlsa county charging petitioner with tbe crime of murder. That on tbe 30th day of October, 1933, a jury returned a verdict of “guilty of manslaughter in tbe first degree.” That in pursuance of such verdict tbe court entered a judgment sentencing, petitioner to imprisonment “in tbe.state penitentiary, at McAlester in tbe state of Oklahoma and be confined in said penitentiary for tbe rest of bis natural life for said offense of manslaughter,” etc.

It is the contention of petitioner that said judgment and sentence is void and that he is entitled to be discharged because “there is no statutory authorization1 therefor.” It is contended in the brief in support of said petition that the court did not have the authority or right to enter a sentence against petitioner for “life imprisonment” where he had been convicted of manslaughter in the first degree; that a life imprisonment sentence can only be given when one is convicted of murder. In support of this contention petitioner cites and relies; upon Oklahoma Statutes 1931, section 2227, O. S. A. title 21, § 715, which provides:

“Every person guilty of manslaughter in the first degree is punishable by imprisonment in the penitentiary for not less than four years.”

In this connection petitioner has failed to consider Oklahoma Statutes 1931, section 3138, O. S. A. title 21, § 62, which provides:

“Whenever any person is declared punishable for a crime by imprisonment in the penitentiary for a term not less than any specified number of years, and no limit to the duration of such imprisonment is declared, the court authorized to pronounce judgment upon 'such conviction may, in its discretion, sentence such offender to imprisonment during his natural life, or for any number of years not less than such as are prescribed.”

This statute has been construed by the Territorial Supreme Court in the case of Baysinger v. Territory, 15 Okla. 386, 82 P. 728, 732. In this case the court said:

“This statute was not called to the attention of the court when the case of Jones v. Territory, 4 Okla. 45, 43 P. 1072, was decided, and the writer of the opinion either overlooked or had not discovered it, and it was not cited in that case. Jones was not sentenced for life, but the same argument was there made as in this case — that the court had no power to assess a punishment which would, according to the ordinary expectancy of life, equal a life punishment. In that case the court reached the right conclusion without reference to this statute. The punishment prescribed for manslaughter in the first degree comes squarely within the terms of the section quoted supra. The imprisonment must be for a term not less than a. specified number of years, and no limit to the duration of such imprisonment is declared; hence the court is in its discretion authorized to sentence such offender to imprisonment for life or for any number of years not less than four. The court fixed the term of imprisonment at 25 years, which was clearly within the statutory authority and discretion of the court.”

See, also, Ex parte Lair, 29 Okla. Cr. 282, 233 P. 789; People v. Brooks, 65 Cal. 295, 4 P. 7; People v. Winthrop, 118 Cal. 85, 50 P. 390.

In accordance with these opinions, which we think clearly state the law, and the terms of the aboye statute, the writ of habeas corpus of petitioner is hereby denied.

JONES and DOYLE, JJ., concur.


text:
    MARSHAL BROWN et al. v. STATE.
    No. A-9857.
    Nov. 19, 1941.
    (119 P. 2d 253.)

      Sigler & Jackson, of Ardmore, for plaintiffs in error.
    Mac Q. Williamson, Atty. G-en., for defendant in) error.
   JONES, J.

The defendants, Marshal Brown and Sam Morris, were jointly charged by information on December 13, 1939, in the county court of Carter county with unlawful possession of intoxicating liquor, tried, convicted and sentenced to serve teams of 30 days, each, in the county jail and to pay a fine of $100 each, and have appealed to this court.

Counsel for defendant contend that the evidence was illegally secured.

Cliff Goldsmith and Roy Nicholson, investigators for the Department of Public Safety, on December1 10, 1939, drove north from Ardmore, Olda. to a tavern named the Log Cabin. The front door was closed; but a small light was burning inside, at the back of the bar. There was a circular driveway around the tavern. They stopped their car near the back of the place, which was brightly lighted. The rear door was open. Goldsmith got out of his car and went up to the open door. On the floor he saiv a large quantity of whisky. Defendants asked him what he wanted, and he stated, “A pint of whisky.” He then called Nicholson. They arrested the defendants without a warrant, and searched the premises. They found whisky, bar1 equipment, and mixer.

Defendants offered m testimony.

This tavern was a place of business, open to the public. Officers were not trespassers in driving up to the door. The whisky was in plain view.

This court held in Franklin v. State, 71 Okla. Cr. 115, 109 P. 2d 239:

“The constitutional provision against unreasonable searches and seizures does not preclude the making of a seizure, without a warrant previously procured, of intoxicating liquor, where there is no need of a search for the liquor because the liquor is fully disclosed to the eye.”

See, also, Tripp v. State, 73 Okla. Cr. 69, 118 P. 2d 273.

This case is accordingly affirmed.

BAREFOOT, P. J., concurs. DOYLE, J., dissents.


text:
    J. W. HARRIS v. STATE.
    No. A-10065.
    Nov. 19, 1941.
    (119 P. 2d 253.)
    Mac Q. Williamson, Atty. Gen., J. Walker Field, Asst. Atty. Gen., and Lewis R. Morris, Co1. Atty., of Oklahoma City, for the State.
    Jim B. Barnett, of Oklahoma City, for defendant.
   PER CURIAM.

Defendant, J. W. Harris, was charged in the court of common pleas of Oklahoma county with the crime of transporting intoxicating liquor, to wit, 30 pints of tax-paid whisky and three pints of gin, wad tried by the court without the intervention of a jury, was convicted and sentenced on the 6th day of January, 1941, to' serve 30 days in the county jail and pay a fine of $50, and he appeals.

The record in this case was¡ filed in this court on the 6th day of May, 1941. No brief has been filed in support of the defendant’s assignment of errors. This case was submitted on the 13th day of November, 1941, after notice given to attorneys, on a, motion to dismiss filed by the Attorney General for the reason that no brief had been filed by defendant. The time permitted by the rules, of this, court for the filing of brief in this case has long ago expired, and there has been no request for extension.

Rule 9 of this court provides:

“When no counsel appears, and no briefs are filed, the court will examine the pleadings, the instructions of the court, and the exceptions, taken thereto', and the judgment and sentence, and if no prejudicial error appears, will affirm the judgment.”

We have carefully examined the record in this case and find no error prejudicial to the rights of the defendant. The judgment of the court of common pleas of Oklahoma county is therefore affirmed.


text:
    JOE ZEWALK v. STATE.
    No. A-9885.
    Nov. 26, 1941.
    (119 P. 2d 874.)

      Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and George R. Inglish, Co. Atty., of Okmul-gee, for the State.
    L. A. Wallace, of Okmulgee, for defendant.
   BAREFOOT, P. J.

Defendant, Joe Zewalk, was charged in the superior court of Okmulgee county with the crime of larceny of domestic animals, to wit, one Holstein heifer and one Guernsey heifer; was tried, convicted and sentenced to serve three years in the penitentiary, and has appealed.

The errors assigned for reversal of this case are:

“I. The trial court erred in permitting the state! to introduce evidence concerning the commission of a crime other than the one with which the defendant stood charged.
“II. The trial court erred in refusing the defendant’s offer to prove certain contradictory statements made •by the state’s witness-, Jack Morris.
“III. Because of misconduct of the assistant county attorney in the tidal of the case, which prevented the defendant from having a fair and impartial trial.
“IV. Because the trial court erred in overruling the defendant’s motion for new trial.”

For a proper consideration of these errors a statement of the facts is necessary. Defendant was charged! jointly with Roy Johnson and Jack Morris with the larceny of the above-described property in Okmulgee county from Clarence Idsardi on the 20th day of August, 1939. The evidence of the state, as shown by the record, revealed that the two cattle above described, which were each branded “C. I.”, were stolen from near the premises of the prosecuting witness on Sunday night, August 20, 1939.

Jack Morris, a witness for the state, testified that he lived two* and one-half miles south of Okmulgee; that on the night of Thursday,' August 17, 1939, the defendant, Joe Zewalk, Clyde Nero and Sam Lovett, came to his home in Lovett’s car; that he had known Clyde Nero for some time; that a deal was made whereby he was to haul some cattle to Muskogee and that he was to1 meet the defendant, Joe Zewalk, and Sam Lovett in the bottom out by the river bridge on the Lake Okmulgee road the next night, which would be Friday night, August 18, 1939; that in pursuance of this agreement he met the above parties, and they brought with them Roy Johnson. They introduced him to Roy Johnson and told him to wait until they went and got some cattle. He waited for about three hours. They did not return, and he saw an auto1mobile drive off into the bottom and he got scared, dropped his car keys and ran. He left his truck and did not return to get the same until the next morning (Saturday). On Saturday morning, while in his truck with hisl wife, he met the defendant in Okmulgee and made arrangements with him to go back to the bottom the following night, which would be Sunday night, August 20, 1939, for the purpose of getting the cattle. On that night he met the defendant and Roy Johnson, and they directed him down to the bottom. They loaded the cattle, which were identified as being the cattle of the prosecuting witness, Clarence Idsardi, and that he and defendant took the cattle in the truck to Muskogee, where they were sold to the Central Packing Company. That he received a check for the cattle and cashed the same and gave the defendant $20 or $25. That he and defendant returned in his truck to1 Okmulgee on Monday morning between 9 :00 and 9:30 o’clock, and the defendant got out of his truck in front of the Brunswick Pool Hall on East 6th street, and his, wife was across the street and saw defendant get out of the truck, and she and her husband drove away. This witness also testified that he had stolen cattle on numerous other occasions; that he had been convicted of stealing cattle and receiving stolen property; that he had cases pending against him at this time; that the county attorney had agreed to recommend a sentence of ten years for him in the penitentiary in the cases which he had, and that he expected this agreement to be carried out.

Sam Lovett also' testified for the state and corroborated the evidence of witness Morris as to coming to his home with defendant and Clyde Nero on the night of the 17th of August, 1939, and of arrangements to meet in the bottom near the river bridge west of Okmulgee. That he was present on Friday night and assisted in getting the cattle and went to the place where the truck was parked, but that Morris was gone. That he did not see the witness Morris until Saturday morning and saw him talking to the defendant, but did not hear the conversation.

Mrs. Jack Morris also testified corroborating her husband’s statements as to the parties coming to their home on Thursday night, August 17, 1939. She could not identify the parties, but saw them there. She also1 testified to being present when the defendant and her husband returned from Muskogee to Okmulgee at about 9:30 a. m. on Monday, August 21st, and that she saw the defendant get out of the truck in front of the Brunswick Pool Hall.

Defendant presented several witnesses and himself to prove an alibi, that he was at his home on Sunday evening and at night aud did not leave there. That he did not go' to Muskogee as testified to1 by the witness Morris. That he did not participate in the stealing of the cattle. Defendant also produced witnesses who testified to his previous good character1 and reputation.

Defendant’s first assignment of error is based upon the admission in evidence of the attempted larceny of the cattle on Friday night, August 18, 1939. This was the evidence of the witness Sam Lovett, it being contended that this was an attempt to1 prove larceny of different property than that alleged in the information. We do not think that this evidence was inadmissible. It was within a short time of the larceny alleged, and the evidence is such that it showed not only a conspiracy, but also was so related as to1 be part of the res gestae. The only reason that the cattle were not stolen on the Friday night was because'the witness Morris got scared and ran away. He returned on Sunday night in pursuance of the agreement with defendant, and the evidence is such that would have warranted the jury in finding: that the same cattle were stolen on Sunday night which it was intended to steal on Friday night. It is true that the witness Idsardi testified that he thought his cattle left liis pasture about noon Sunday, August 2'0th, and be was not sure when they left.

Tbe second assignment of error is based upon tbe fact that tbe witness Jack Morris bad testified in tbe preliminary bearing that when be returned from Muskogee to Okmulgee on Monday morning, August 21, 1939, with the defendant, be did not remember whether bis wife saw the defendant at tbe time that be got out of tbe truck in front of tbe Brunswick Pool Hall. On tbe trial of the case be testified that she walked out to tbe truck, saw tbe defendant get out of tbe truck, and that she saw tbe defendant. He stated that be bad refreshed bis memory since tbe preliminary bearing and remembered she saw him when be got out of the truck. While it occurs to us that tbe evidence of tbe witness at tbe preliminary would be competent for tbe purpose of impeachment of tbe witness, we do not think it was such error as should cause a reversal of this case under all tbe facts and circumstances. Tbe witness was not confronted with this! testimony at the time be was on the witness stand, but counsel for defendant presented tbe court reporter1, who testified that defendant testified at tbe preliminary as above outlined. The court- refused to admit this evidence. We do not think this was such error as to cause a reversal of this case. The question as to whether they arrived at Okmulgee from Muskogee on Monday morning, August 21, 1939, at 9:30 or 10:30, was immaterial. This was a proper question for tbe consideration of tbe jury. While we think tbe court should have permitted tbe evidence of tbe testimony given by the witness Morris at the preliminary examination, it was not such error as would cause a reversal of this case when one takes- into consideration tbe record as a whole. Oklahoma Statutes 1931, section 3206, O. S. A. title 22, § 1068; Knox v. State, 34 Okla. Cr. 300, 246 P. 665; Ray v. State, 35 Okla. Cr. 322, 250 P. 438; Offitt v. State, 5 Okla. Cr. 48, 113 P. 554; Hooper v. State, 7 Okla. Cr. 43, 121 P. 1087; Crowell v. State, 42 Okla. Cr. 392, 276 P. 518; Cadwell v. State, 54 Okla. Cr. 2, 13 P. 2d 214.

The next contention of defendant is based npon the misconduct of the assistant connty attorney. This is •based npon certain questions asked the defendant on cross-examination with reference to the testimony of a certain witness in a preliminary examination of the defendant in a case other than the one on trial. An objection was sustained to the question by the court and the witness did not answer the same. It was incompetent, but we do not think it wa'si such as would have changed the verdict reached in this case.

Por the reasons above stated, the judgment and sentence of the superior court of Okmulgee county is affirmed.

JONES and DOYLE, JJ., concur.


text:
    J. D. TUGGLE v. STATE.
    No. A-9979.
    Nov. 26, 1941.
    (119 P. 2d 857.)

      Otis D. Jame'si, Charles W. Harrison, and Charles W. Adams, all of Oklahoma City, and George Hill, of McAlester, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, J. D. Tuggle, was charged in the district court of Garvin county in case No-. 2265 with the crime of murder of one Sadie Jones, and was charged by information in the same court in case No. 2268 with the crime of murder of D. Wilburn Jones. The defendant entered a plea of guilty in each of said cases and was sentenced to death in the electric chair at the State Penitentiary for said crimes by him so committed, from which judgment and sentence an appeal was taken to this court.

By agreement, the two cases were consolidated and: appealed to this court as one case. The killings occurred at the same time, and the pleas' of guilty to the two charges were entered at the same time; and this procedure was followed for the reason that, unless the defendant received relief from the sentences imposed in both cases, it would not avail him anything to1 secure relief in only one case.

It has been held that an accused has a constitutional right to appeal to' the Criminal Court of Appeals from any judgment rendered against him in a court of record, including a judgment rendered on a plea of guilty. Hardy v. State, 35 Okla. Cr. 75, 248 P. 846; Spelling v. State, 55 Okla. Cr. 195, 28 P. 2d 584; Hancock v. State, 57 Okla. Cr. 329, 48 P. 2d 348; McDessey v. State, 61 Okla. Cr. 345, 68 P. 2d 113; Prothero v. City of Tulsa, 67 Okla. Cr. 214, 93 P. 2d 548.

This is an appeal from a conviction, based upon a plea of guilty; and no objections or exceptions were raised in the hearing before the trial court. In an ordinary case, we would not consider any assignments of error presented by the appellant, unless the same had been properly preserved before the trial court, except those questions which are so fundamental in their nature as to deprive the court of jurisdiction to try the accused and sentence him. However, this is- a capital case where the accused has been sentenced to death in the electric chair; and, in a case of this sort, it is the practice of this court to; thoroughly examine the record, and consider any errors that may be presented, which are fatal to the accused’s rights, even though such errors; were not challenged and preserved by objections, exceptions or assignments of error.

The attorneys who- have briefed and argued the case in this court on behalf of the defendant did not appear before the trial court, but volunteered their services; shortly before the time expired for completing, an appeal to this court. Their services have been commendable. It is a sacrifice on their part; and, wholly without compensation, they have written an able brief on behalf of the defendant, and have argued the matter before this court.

The following assignments of error have been presented :

(1) The punishment imposed was cruel and excessive.
(2) The court erred in not furnishing the defendant with an attorney of his choice at all stages; of the proceedings.
(3) The court erred in that it appears from the record that the trial court entertained a reasonable doubt as; to- the sanity of the defendant at the time of the sentence; and, notwithstanding said doubt, he failed and refused to order1 a hearing to; determine the sanity of the defendant as provided by law.
(4) The defendant was not fully advised as to; his constitutional and statutory rights, and the consequences of his plea before his plea was made.
(5) The defendant was not of such education and intelligence to; understand what his statutory and constitutional rights were, and the consequences of his; plea.

After the defendant was sentenced, a transcript of the proceedings before the trial court was prepared and furnished to the Governor as required by law. The Governor of this state, pursuant to section 3172, O. S. 1931, 22 Okla. St. Ann. § 1003, requested an opinion of this court concerning the legality of the proceedings against the defendant, and to ascertain whether according to the record there had been an observance of all of the formalities of law essential to the taking of human life, and whether the trial, conviction, and sentence of death was in accordance with the law of the land.

Pursuant to this request, this court, in an opinion by Judge Doyle, reviewed the record and thoroughly considered the propositions of law raised by the defendant in assignments Nos. 2, 4, and 5, above. In re Opinion of the Judges (In re J. D. Tuggle), 70 Okla. Cr. 83, 104 P. 2d 726, 732.

In that case, Judge Doyle, speaking for the court, after reviewing the record and the various authorities upon the questions involved, concluded:

“Where it appears from the record, as in this case, that a defendant has been fully advised aJs to his constitutional and statutory rights, and as. to the consequence® of his plea, and that with such knowledge he deliberately enters a plea of guilty, the trial court is justified in accepting it, even in a capital case.
“Prom that careful examination and consideration of the record transmitted by you our advisory opinion i's that the necessary legal steps and proceedings were taken in this case essential to the taking of human life under a charge of murder; that the defendant was accorded the benefit of all constitutional and statutory rights not specifically waived by him; and that his conviction and sentence of death has been in accordance with the law of the land.”

While such an opinion of this court in response to a request of the Governor is merely advisory and not an adjudication, we find that said opinion fully covers the three assignments above named; and we adopt, and reference is made to, said opinion for a full discussion as to those propositions.

It is further contended that the statements made by the trial court in the proceedings indicate that the court had a doubt as to the sanity of the defendant; and that having such doubt, the court erred in not impaneling a jury to' inquire into the proposition of the defendant’s sanity.

The record discloses that at the time of the arraignment of the defendant before the district court, he entered his plea of guilty after the court had fully advised him as to each and every right which he had under the Statutes and Constitution of this state. That after the plea of guilty was made by the defendant, he asked permission of the court to malee a statement as to a possible reason for the act which he had committed.

Permission was granted; and the defendant gave a lengthy statement of his life history, including a statement as to what happened at the time he killed Mr. and Mrs. Jones. The defendant, in his statement, relates that he is a sexual pervert, and recites a series of sexual acts committed by him. He also- told of committing a burglary on a drugstore and receiving a suspended sentence.

This story related by defendant is a revelation of the depth of degradation to1 which a human may sink. The atrocious sexual crimes committed by the defendant, according to hisi story, are enough toi make the average citizen shudder and blush with embarrassment to see in' print or hear repeated; and they will not be detailed in this opinion.

Insofar as the particular crimes with which the defendant stood charged were concerned, he related that he had gone over to spend the night with his uncle and aunt; that he was sleeping on a pallet in the adjoining bedroom to where Mr. and Mrs. Jones and defendant’s half sister were sleeping. That after he had lain on his-pallet a while, he got the desire to go into' the other1 room where his half sister was lying, and play with her1 private organs, and satisfy his sexual appetite. That he went to the bed of his half sister, placed his hands under the cover, and was feeling and fumbling with her when he heard Mr. Jones smack his lips as if he were waking up. That he saw an axe handle laying close to the bed, which he grabbed and used to strike the deceased, Mr. Jones, over the head. The defendant further stated:

“When I hit him the sound of the blow woke the old woman up and when she' woke up she screamed and said, ‘My God, J. X)., don’t do that.’ I was crazy then, I guess. I knew what I was doing but I couldn’t keep myself from doing it, so then,I hit her. She fell back on her pillow, and then the kid raised up and I don’t know whether the kid caught on to my belt buckle or where and pulled and screamed at me and I hit her, and I knew> that I didn’t hit either one of them more than twice, and they were alive when I left the house. The first thing I thought of was to get as far away as I could. I wanted to take that kid with me, but I was thinking of getting away. But I knew the kid was bloody and I knew that would cause me to get caught quicker. The old man’s pants was under his pillow so I got his pocket book out, and I got hi'si car1 key. His pocket book had five one dollar bills and one five dollar bill in it and some change, and the pocket knife was in his pockets and I took that, -why, I don’t know. There was a 16-gauge shotgun sitting against the door facing and I grabbed it then and I drove anywhere from 70 to- 90 miles an hour when I left. I drove to Pine Valley, then across the mountains to Broken Bow. I bought a shirt, cap and necktie and drove to the state line, but not across it, because I was afraid of the Federal Bureau of Investigation, or, in other words, the G-Men. I was nearly out of money and then I started thinking of coming back and giving myself up. I Avas crazy to find out what had happened, whether they had died, or Avhat had happened, so I came back to I-Ieavener, Okla, I have always made it a habit to go in picture shows. You fellOAVs probably go there for entertainment. I go there merely for1 the purpose of masturbating, with the help of some small child. I have done it here in Pauls Valley, and there are very few towns in Oklahoma that I haven’t been in and done this. I am not saying this for sympathy, no, I am not expecting sympathy. I am just trying to paint a, picture of what can happen and what is happening every day. I am trying to give you fellows a reason why I did that. After I got back in Heavener I hocked the man’s gun and Avrenches to get some gas and I stayed there two nights. Then I came back to' Daisy Valley and run the car in a ditch when I run out of gas. When the police and two patrolmen officers picked me up I was pulling a car of my cousin’s, John Burleson. I was pulling the car in to' get some gas and then come back and give myself up.”

After the defendant had completed his statement, considerable conversation occurred between the accused and the trial judge, during which the court made the following statement:

“As to the matter of passing sentence, under1 the law, if a jury had found you guilty and it were in term time, as we lawyers express it, I couldn’t pass sentence upon you for 48 hours, and under the circumstances of this) case, I refuse to pass sentence on you under 48 hours. It may be a matter of serious mental disturbance for you, not knowing. what .to presume will be the sentence. By the Defendant: None, Avhatever. By the Court: I am glad for that because I would not inflict additional mental worry upon you at all, but mine is a responsibility which I prefer to take seriously and deliberate upon profoundly and discharge conscientiously. By the Defendant: I appreciate that, sir. By the Court: If it is agreeable with you, I am going to set your sentence date for high noon, Thursday, May 23. By the Defendant: That is Thursday of this week, is it not? By the Court: Yes. By the Defendant: The only thing that would make it any more agreeable would be sooner1 than that. Of course, that matter is entirely up to you, it doesn’t particularly matter to me. By the Court: Frankly, one reason I want to set the date for then is that I want to talk to an old friend of mine, Dr. Griffin, the head of the mental institution at Norman, who is an international authority on the conditions of abnormality.”

On May 23, 1940, the court appointed J. T. Blanton to confer further with the defendant concerning the crimes with which he stood charged, and continued further proceedings to' June 3, 1940. Considerable colloquy occurred on May 23rd between the court and the defendant, in the course of which the court made this statement:

“I am going, to take a copy of the record, as I told you I haven’t had an opportunity to do it, and talk to' Dr. Griffin who is the head of the State Hospital at Norman and frankly, I am going to inquire into the proposition of your sanity.”

On June 3, 1940, the defendant again appeared in person and with his attorney, J. T. Blanton, at which time he personally stated to the court that he wished to stand on his former plea of guilty to' each of the charges of murder.

The court stated:

“I have made, I believe, more than a reasonable effort to determine the true status of your mind at the present time and at the time of the commission of this crime. The person to whom I alluded by making a statement that I was going to interview him with reference to the matter of your mentality, to wit, Dr. Griffin, head of the State Hospital at Norman, was out of Norman for an indefinite stay; however, I got to talk to Dr. Rayburn, his assistant, who has been a doctor in that institution and an authority on abnormalities of the mind for 15 years or longer1. The Doctor tells me that your mind is such that it might become unstable but, however, on the occasion of this crime that you were in possession of your mental faculties. I have written Mi*. J. F. Dunn, Warden of the State Penitentiary, at the suggestion of Dr. Rayburn, who stated that Mr. Dunn is as much an authority on such conditions as the average doctor, or even more so, because he has dealt with persons convicted of crime for a number of years. This morning, in the U. S. mail I received under date of June 1, 1940, this letter of Mr. Dunn which reads, omitting the address: Tn re: J. D. Tuggle, No. 41269. Dear Judge: This is to acknowledge receipt of your letter of recent date, relative to' the mental condition of the above named and numbered subject. I am no authority whatsoever in judging the mentality of criminals, but after talking with this subject on two different occasions, I have come to the conclusion that he is perfectly sane and in all respects seems to1 be a rather intelligent boy. Yours very truly,’ Signed, ‘J. F. Dunn, Warden.’ ”

The remarks of the court hereinabove quoted constitute only a small part of the conversation had with the defendant in the proceeding before the court. But the statements of the court above quoted concerning his intention to talk with Dr. Griffin and others concerning) the mental condition of the defendant constitute the basis for the contention of defendant’s counsel that the court had a doubt as to the sanity of the defendant and should have impaneled a jury to determine the question of the defendant’s sanity.

It is provided by sections 3211 (as amended, Laws 1935, p. 19, § 1), 3212, and 3213, O. S. 1931, 22 Okla. St. Ann. §§ 1161, 1162, and 1163, as follows:

“An act done by a person in a state of insanity cannot be punished as a public offense, nor can a person be tried, adjudged to punishment, or punished for a public offense, while he or she, as the case may be, is insane •if * * »
“When an indictment or information is called for trial, or upon conviction the defendant is brought up for judgment, if a doubt arise as to the sanity of the defendant, the court must order a jury to be impaneled from the jurors summoned and returned for the term, or who may be summoned by direction of the court, to inquire into the fact.”
“The trial of the cause or the pronouncing the judgment, as the case may be, must be suspended until the question of insanity is determined by the verdict of the jury.”

In the case of Maass v. Phillips, 10 Okla. 302, 61 P. 1057, 1058, it is stated:

“But’ who is to determine as to whether such doubt exists in the mind of the court? In reason only one answer can be given. The court alone must say if such doubt exists. The trial judge sees the defendant, and is necessarily more or less familiar with the circumstances surrounding him and his case; and the fact that the county board of insanity may have adjudged him insane prior to the time fixed for his sentence, even if the order of such adjudication was admitted in evidence or considered by the trial court, would not necessarily control its action, because such order is not an adjudication of finding of any court, and is not admissible upon a trial to prove the insanity of such person.”

In the recent case of Ex parte Gilbert, 71 Okla. Cr. 268, 111 P. 2d 205, 206, Judge Barefoot, in an opinion of the court, discussed the statutes concerning the question involved herein, and cited the various authorities of this state and other jurisdictions bearing upon this point. In that case it is stated:

“If a doubt arises in the mind of the court, he must order a jury to- be impaneled fro-m the jurors summoned and returned for the term, or who may be summoned by direction of the court, to inquire into- the sanity of the defendant, either before the trial or before judgment and sentence is pronounced. * * *
“This doubt may arise in the mind of the court upon application for a continuance, motion for a new trial, motion in arrest of judgment, by ex parte affidavit or declaration of a. bystander, or the court of its own motion; and while the cp-urt cannot act arbitrarily in the matter, it has the right to look to the source of the information, and come to- a proper conclusion, from all the facts- and circumstances, whether there is a doubt in his mind as to the sanity of the defendant. He may also consider the fact that the question of insanity was never raised.”

The defendant remembered with clarity, the minutest details of the killings, as shown by his statement. He knew he was do-ing wrong all of the time he was committing the crimes. We cannot assent to the proposition that a morbid state of affections or passions, or an unsettling of the moral system, where the mental faculties remain in a normal, sound condition excuses actions-, otherwise criminal.

We have given this contention of the defendant the close study and attention which such a question merits. The acts of sodomy, masturbation, fornication, and other sexual offense-s related by the defendant do- no-t, in themselves, show insanity. They are just evidence of a looseness of morals- that has been encouraged and cultivated! by living with prostitutes, whoremongers, and pimps in houses; of ill-fame. The details of wickedness related by the defendant were so- debased as to- startle any rational, moral citizen; and it is no discredit to- the trial judge that he concluded, after hearing the defendant’s story, to converse with Dr. Griffin, and others concerning the mental and physical condition of the defendant.

The record indicates that such action of the court was not taken because there was a doubt as to the defendant’s sanity; but it merely indicates that the judge was being cautious and doing his best to proceed in an orderly, legal manner to' learn all that he could about the defendant before pronouncing judgment upon him. The court only accepted the plea of guilty entered by the defendant after continuing the case on two occasions, and finally accepted it only at the insistence of defendant, after he had concluded that the defendant fully comprehended the seriousness of the charges which confronted him, and understood all of his legal and constitutional1 rights.

The fact that there was no evidence of insanity presented to the trial judge and nothing in the record to indicate that the defendant was insane at the time of the commission of the crimes, or insane at the time judgment and sentence was pronounced against him, does not preclude a further investigation into the sanity of the defendant since his incarceration in the State Penitentiary. See section 3174, O. S. 1931, 22 Okla. St. Ann. § 1005.

The Governor, if a question of the sanity of the defendant is presented to him, will have proper inquisitions by alienists appointed by him made for his guidance.

Lastly, it is contended that the sentences pronounced against the defendant are cruel and excessive. It is probable that if the defendant had never made his statement, the prosecution would have ascribed robbery as the motive for the killings, because the watch, money, knife, shotgun, and automobile of the deceased were taken after the killings. The defendant, in relating how the crimes were committed, details very minutely the things that occurred. He killed his uncle because he thought that he was about to awaken and catch him perpetrating a sexual crime against his half sister. He cruelly struck his aunt over the head several times with the axe handle, after1 she had awakened and pleaded with him to stop. He then struck his own half sister, seriously injuring her. With his three victims lying unconscious, and two of them never to recover, he coolly searched under deceased’s pillow for money, and rifled the pockets of the deceased’s pants for the car keys and other personal property of the deceased, which the defendant stole at that time.

The infliction of the death penalty should not be imposed except in the most exceptional cases. We have concluded that this case is one of those cases, where the defendant, by his own action, has forfeited his right to live. If this is not a case where capital punishment should be imposed, then such punishment might well be eliminated from our statute books.

After a careful consideration of the whole record, we find no errors in the proceedings had before the trial court, and feel that the judgment and sentence pronounced against the defendant was fully justified under the facts, and that the judgment of the district court of Garvin county in each of said cases should be affirmed.

The original time for execution having passed, owing to the pendency of this appeal, it is, considered, ordered, and adjudged by this: court that the judgment and sentence of the district court of Garvin county be carried out by the electrocution of the defendant on the 9th day of February, 1942, in the State Penitentiary at McAlester, Okla.

BAREFOOT, P. J., and DOYLE, J., concur.


text:
    BILL HANSON v. STATE.
    No. A-10051.
    Nov. 26, 1941.
    (119 P. 2d 874.)
    C. B. Wood, of Fairview, for defendant.
    Mac Q. Williamson, Atty. Gen., J Walker Field, Asst. Atty. Gen., and J. W. Wilcox, Co. Atty., of Ta-loga, for the State.
   PER CURIAM.

Bill Hanson was convicted in the county court of Dewey county of the crime of unlawful possession of intoxicating liquor, to wit: about eleven pints of bonded whisky; and his punishment assessed at a fine of $50 and 30 days imprisonment in the county jail.

Defendant appealed to' this court on the 8th day of April, 1941, but no brief has been filed in support of his assignment of errors. This case was submitted on the 13th day of November, 1941, after notice was given to defendant, on motion to dismiss by the Attorney General. The time granted defendant to file brief in this case has expired.

Rule 9 of this court provides :

“When no counsel appears, and no briefs are filed, the court will examine the pleadings, the instructions of the court, and the exceptions taken thereto, and the judgment aud sentence, and if no prejudicial error appears, will affirm the judgment.”

A careful examination of the record reveals no1 error prejudicial to the rights of the defendant. The judgment of the county court of Dewey county is therefore affirmed.


text:
    R. H. HOWARD v. STATE.
    No. A-9922.
    Nov. 26, 1941.
    (119 P. 2d 879.)
    James M. Hays, Jr., of Okmulgee, for defendant.
    Mac Q. Williamson, Atty. Gen., J. Walker Field, Asst. Atty. Gen., and George R. Inglish, Co. Atty., of Okmulgee, for the State.
   PER CURIAM.

Defendant, R. H. Howard, was convicted of the crime of unlawful possession of intoxicating liquor, to wit: 150 pints of whisky and 14 quarts of whisky, in the county court of Okmulgee county, and his punishment assessed at a fine of $150 and 90 days imprisonment in the county jail.

Defendant appealed to this court on the 21st day of August, 1940, but no brief has been filed and no> oral argument had in support of his assignment of errors. This case was submitted on the 13th day of November, 1941, after notice was given to defendant, on motion to dismiss by the Attorney General. The time permitted by tbe court for defendant to file Ms brief has expired.

Eule 9 of this court provides :

“When no counsel appears, and no briefs are filed, the court will examine the pleadings, the instructions of the court, and the exceptions taken thereto, and the judgment and sentence, and if no prejudicial error appears, will affirm the judgment.”

We have carefully examined the record in this case and find no error prejudicial to- the rights of the defendant. The judgment of the county court of Okmulgee county is therefore affirmed. •


author: BAEEFOOT, P. J.

text:
    Ex parte EUGENE FIELD.
    No. A-10149.
    Dec. 3, 1941.
    (119 P. 2d 864.)
    Ellmore Pinnick, of Oklahoma City, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for the State.
   BAEEFOOT, P. J.

Petitioner, Eugene Field, has filed an application for writ of habeas corpus alleging that he is confined in the State Penitentiary at McAles-ter; that said confinement is by reason of a judgment and sentence entered in the district court of Comanche county on the 20th day of July, 1933, sentencing him to serve a life sentence on a plea of guilty to a charge of robbery with firearms. There is attached to the petition a copy of the information filed in Comanche county, the judgment and sentence, and a copy of defendant’s prison record.'

To this petition the Attorney General, on behalf of the warden of the penitentiary, has filed a response denying each and every material allegation in said petition set forth. It is contended by petitioner that the information filed in the district court of Comanche county was void; that said information only charged an assault with intent to kill and that said information is so “vague, indefinite and uncertain that it fails to charge an offense against the laws of the State of Oklahoma.”

We have examined the information, a copy of which is attached to the petition, and find that the same properly charges petitioner Avith the crime of robbery with firearms, all the elements of said offense being properly stated in said information.

It is further alleged in said petition that petitioner Avas placed in jail on the 8th day of July, 1933, and was ■held in jail on what is known as “investigation,” and that he was denied the right to communicate with friends or counsel; that an information charging him with robbery with firearms was filed on the 19th day of July, 1933, and that the county attorney of Comanche county advised him to enter a plea of guilty and that it would go much lighter Avith him; that on the 20th day of July, 1933, he entered a plea of guilty and was sentenced by the district judge of Comanche county, as above set forth. He further alleges in his petition that he was not furnished counsel or permitted to consult with counsel, nor was he advised of his rights before he entered his plea of guilty; that he ivas young and inexperienced and had never appeared in court, and was incapable of making his own defense because of his youth and ignorance of all court procedure; that the court at no- time advised him that he was entitled to counsel before entering his plea of guilty, and that he did not waive any of his constitutional rights.

As above stated, no evidence was offered by petitioner to in any Avay substantiate the allegations above set forth. A response was -filed by the Attorney General denying all and singular these allegations, and no proof was offered to substantiate them. The burden was upon the petitioner, and he in no way met this burden. Ex parte Scott, 56 Okla. Cr. 206, 36 P. 2d 302; Ex parte Murray, 54 Okla. Cr. 437, 23 P. 2d 220; Ex parte Johnson, 1 Okla. Cr. 414, 98 P. 461.

For this reason the petition for writ of habeas corpus is denied.

JONES and DOYLE, JJ., concur.


text:
    CLAUDE CHASTAIN v. STATE.
    No. A-10014.
    Dec. 3, 1941.
    (119 P. 2d 864.)

      W. H. Cooper, of Anadarko1, for defendant.
    Mac Q. Williamson, Atty. Gen., and Haskell B. Pugh, Co. Atty., of Anadarko, for the State.
   PER CURIAM.

Defendant, Claude Chastain, was charged jointly with Virgil Mobley in the district court of Caddo county with the crime of burglary in the second degree. Virgil Mobley demanded a severance, and defendant was tried separately before a jury which found him guilty and assessed his punishment at two years’ confinement in the penitentiary, from which conviction defendant has appealed.

This appeal was filed on the 19th day of February, 1941, but no. brief has been filed and no1 oral argument has been made in support of defendant’s assignment of errors, although the time to file brief granted by the rules of this court long ago expired. It has been uniformly held under the rules of this court that, when no counsel appears for oral argument and no brief is filed, the court will examine the pleadings, the instructions of the court, and the exceptions taken thereto1, and the judgment and sentence, and if no prejudicial error appears, will affirm the judgment.

We have carefully examined the record in this case and find no> prejudicial error which might justify a reversal of this case. The judgment of the district court of Caddo county is therefore affirmed.


text:
    OTHO BECK v. STATE.
    No. A-9887.
    Dec. 3, 1941.
    (119 P. 2d 865.)

      A. Flint Moss and Tom Durham, both of Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Otho Beck, was charged on December 7, 1939, by information in the district conrt of Tulsa county with the offense of assault with a dangerous weapon, was tried, convicted, and sentenced to serve a term of three years and six months in the State Penitentiary, and appeals to this conrt.

It is first contended that the information filed against the defendant was fatally defective for the reason that the driving of an antomobile nnder any circumstances isl not the nse of a dangerons weapon of the kind and character defined by the statute.

The information against the defendant, omitting the formal parts, reads as follows:

“* * * that Otho Beck on the twenty-eighth day of November, A.D., 1939, in Tulsa County, State of Oklahoma, and within the jurisdiction of this court, did unlawfully, willfully and feloniously commit an assault and battery upon the person of one Eichard Paris, by means of such force as wasi likely to produce death; that is to say, the defendant was driving and propelling a 1938 Ford coupe automobile in a dangerous and reckless manner while under the influence of intoxicating liquor; and a.t the intersection of 9th street and Cincinnati Avenue in the City of Tulsa, then and there driving and propelling said automobile over and against the body and person of the said Eichard Paris, then and there throwing and hurling him against an automobile and to the street and pavement, severing his right thumb and otherwise bruising, wounding and injuring him, the said Eichard Paris, in the way and manner aforesaid; with the unlawful and felonious intent then and there upon the part of the said defendant, Otho Beck to injure the said Eich-ard Paris, and doi him great bodily harm and injury # * V

This information was drawn under section 1870, O. S. 1931, 21 Okla. St. Ann. § 645, which is in the following language:

“Every person who, with intent to do bodily harm, and without justifiable or excusable cause commits any assault upon the person of another with any sharp or dangerous weapon, or who, without such cause, shoots or attempts to shoot at another, with any kind of firearm or airgun or other means whatever, with intent to injure any person, although without intent to> kill such person or to' commit any felony, is punishable by imprisonment in the penitentiary not exceeding five years, or by imprisonment in a county jail not exceeding one year.”

It is contended by the defendant that this statute was originally passed by the Territorial Legislature in the year 1890 and lias been adopted into our present Code without any modification. That in 1890 there were no automobiles, and the Legislature did not have in mind that the term “dangerous weapon” should ever include an automobile, and that the court should not construe the statute so as to enlarge it to include automobiles.

It is further insisted the term “or other means whatever,” as used in the statute, is a general term, and that under the rule of ejusdem generis such general phrase is restricted to things of like character, as the specific things enumerated in the statute.

An examination of the statute discloses that the assault defined by the statute may be committed “with any sharp or dangerous weapon” or it may be committed by any person “who, without such cause, shoots or attempts to shoot at another1, with any kind of firearm or airgun or other means whatever.” The term “or1 other means whatever” relates to that part of the statute making it an offense to- shoot or attempt to shoot at another with a gun, and does not refer to the first part of the statute making it an offense to- assault a person with a sharp or dangerous weapon.

No cases are cited by counsel for defendant in support of their contentions that an automobile is such an instrumentality that it may never be a dangerous weapon as defined by the statute. They rest their argument upon the conclusion that since automobiles were not in use when this statute was, first adopted, it could not have been in the contemplation of the Legislature that the term “dangerous weapon” would ever include an automobile.

We have many articles which are not dangerous weapons per se, but which from the manner of their use may become dangerous weapons. A chair, a stick, a clock, and many other articles are not dangerous weapons per se, but the manner of their use might make them a dangerous weapon. This court, in the case of Winkler v. State, 45 Okla. Cr. 322, 283 P. 591, and in the case of Lamb v. State, 70 Okla. Cr. 236, 105 P. 2d 799, has specifically held that where an automobile is being operated in a manner forbidden by law, and the proof shows that the accused, while so operating the automobile, ran into and injured a person lawfully on said highway, that the operation of the automobile in such manner takes the place of and supplies the unlawful intent. In each of these cases this court sustained convictions for assaults committed with an automobile.

Defendant contends that the rule in Winkler v. State, supra, and Lamb v. State, supra, is erroneous, and that those decisions should be specifically overruled.

While no authorities have been cited by counsel for defendant in support of their argument and no brief has been furnished to- the court upon this point by the state, we have undertaken to make an examination of the decisions of many other states to ascertain whether the courts of last resort of those states in their interpretations of similar statutes have held that operation of an automobile in a manner forbidden by laAV resulting in injury to a person laAvfully using the highway constitutes a criminal assault.

In the case of Williamson v. State, 92 Fla. 980, 111 So. 124, 126, 53 A.L.R. 250, it is stated:

“In the case of People v. Clink, 216 Ill. App. 357, it was said: ‘It is contended that an automobile is not a deadly weapon within the meaning of the Statute on Assault, § 25, c. 38 (J. & A. par. 3507 [Smith-Hurd Stats, c. 38, § 60]). It is probably true that very nearly all of the reported cases involving a deadly weapon relate to an instrument that Avas lifted by the [hand] in making the assault, most frequently something in the nature of a bludgeon. There is no sound reason why the deadly nature of the instrument should be determined solely with reference to its use while lifted in the hands; any instrument which through human, control is the means of inflicting a blow may be a deadly weapon. It is any instrument so' used as to be likely to produce death or great bodily harm. Bouvier’s Law Dictionary; McNary v. People, 32 Ill. App. 58. In Acers v. United States, 164 U. S. 388, 17 S. Ct. 91, 41 L. Ed. 481, it was held that “anything, no> matter what it is, * * * whether it was made by him for some other purpose, * * '* if it is a thing with which death can be easily and readily produced, the law recognizes it as a deadly weapon.” This definition includes an automobile when used in a manner likely to produce death or great bodily harm.’
“This case was followed and approved in the case of People v. Anderson, 229 Ill. App. 315. See, also, 5 C. J. 737; Berry on Automobiles (4th Ed.) § 1755; Clark v. State, 63 Tex. Cr. R. 579, 140 S. W. 779; People v. Rodrigo; 69 Cal. 661, 11 P. 481 [8 Am. Crim. Rep. 53].
“We conclude, therefore, that an automobile may be so used as to' constitute a deadly weapon within the meaning of section 5661 of the Rev. Gen. Stats., and that it was competent for the jury, under the evidence in this case, to determine whether the plaintiff in error was at the time of the offense charged so using his automobile as to constitute the same a deadly weapon within the meaning of the law.”

In the case of Brimhall v. State, 31 Ariz. 522, 255 P. 165, 53 A.L.R. 231, it was held:

“Negligent personal injuries when recklessly, wantonly, or willfully inflicted so as to' show an utter disregard of the safety of others, may render one liable for aggravated assault, although there was no intent to inflict injury.”

In Bleiweiss v. State, 188 Ind. 184, 119 N.E. 375, 122 N.E. 577, it is said:

“There can be no doubt that an assault and battery may be committed by striking another with an automobile.”

It is further held in that case that the intent to injure may be inferred from intentional acts, where the injury was the direct result of them, done under circumstances showing a reckless disregard for the safety of others, and a willingness to inflict the injury, or the commission of an unlawful act which leads directly and naturally to the injury.

In the case of People v. Benson, 321 Ill. 605, 152 N.E. 514, 516, 46 A. L. R. 1056, it is stated:

“We do not think that the evidence in this case warrants the finding that Benson had the specific intent in his mind to strike or collide with the other car at the time he was passing it with his Ford coupe, but the evidence does warrant the finding of the judge who tried the case that he was guilty of reckless driving and speeding while attempting to pass the car which was shown to be traveling about 25 or 30 miles an hour at the time it was struck, and that his conduct on this occasion was shown, beyond a reasonable doubt, to be so reckless, wanton, and willful as to show an utter disregard for the safety of the persons in the Chevrolet car. Under the previous holdings of this court such a finding is sufficient to convict the defendant of an assault with a deadly weapon, as charged in the indictment in question. People v. Anderson, 310 Ill. 389, 141 N.E. 727.”

We have found no state in which it is held that an automobile may not from the manner of its use become a deadly weapon in which an unlawful assault and battery may be committed.

For an annotation of the decisions from the various states upon this question, see: 16 A. L. R. 914; 21 A. L. R. 1504; 27 A. L. R. 1182; 30 A. L. R. 66; 41 A. L. R. 725; 42 A. L. R. 1120; 46 A. L. R. 1060; 49 A. L. R, 608; and 53 A. L. R. 254.

It is our conclusion after an examination of all these authorities that the statement of law set forth in Winkler v. State, supra, and Lamb v. State (6th par. syl.), supra [70 Okla. Cr. 236, 105 P. 2d 800] : “Where the intent with which an offense is committed is: an essential element of such offense, the operating of an automobile by a person charged with an offense in a manner forbidden by law takes the place of and supplies the unlawful intent. It then becomes a question of fact whether or not defendant at the time was guilty of ‘culpable negligence’ in operating an automobile upon the highway in violation of the law”, is a correct statement of the law; and that based upon that conclusion, we hold that the information herein was sufficient to charge a violation of section 1870, supra.

Lastly, it is contended by the defendant that the punishment herein is excessive. In support of this contention the defendant cites several cases concerning assaults in which the punishment inflicted was less than that assessed against the defendant herein.

The question as to whether the punishment imposed against the defendant is excessive and should be modified depends solely upon the facts and circumstances in' each particular case. In each of the cases cited by counsel for defendant, we find a peculiar set of circumstances which probably justified the fixing of the punishment as low as was done.

Here, we have a defendant who hasi been convicted of violations of our laws so many times: that by his own admissions he cannot tell the exact number. He testified on cross-examination that he was a liquor dealer in the city of Tulsa, and had been for the past eight years.

That defendant was drunk and driving his automobile upon one of the main thoroughfares of Tulsa at a speed of 50 miles an hour or greater is; practically undisputed. The witnesses for the state so testified.

The defendant testified in his own behalf, saying that he had drunk eight bottles; of beer and was driving up the street about 45 miles per hour, and was attempting to turn the comer where he struck the injured person, while going at this rate of speed.

There is nothing in the record which would justify this court in interfering with a verdict rendered by a jury of twelve men who heard the evidence and saw the demeanor of the defendant on the witness stand. A different view might be taken if the accused were a person who was a law-abiding citizen with a good record of peaceful and honest citizenship behind him. But here the defendant’s everyday business is devoted to a violation of our laws.

When you get a combination of gasoline in a carburetor and alcohol in the operator of an automobile, disaster generally follows.

While it is the duty of the courts to guard the rights of every defendant charged with crime and to; give him the full benefit of every reasonable doubt of his guilt when tried for crime, it is equally the duty of the courts to- protect the traveling public against reckless, wanton, willful, and unlawful conduct of drivers of automobiles over the public roads of the state.

The defendant here drove an automobile at a high rate of speed into a high school boy, knocked him several feet from the street, clear1 up onto a sidewalk adjacent to the street. His; thumb was severed by the force of the blow. He suffered internal injuries and bruises; and had it not been for the aid of some fellow high school students who were familiar with first aid practices, he might possibly have suffered death from the loss of blood before medical aid could be summoned. As it was> his fellow students shut off the flow of blood by applying external pressure to the proper’ places, and fortunately prevented a more serious result.

One who' is so careless of the rights of others as to use a dangerous instrumentality while incapacitated by drink, as here shown, invites the consequences. He must pay the penalty.

The defendant has had a fair and impartial trial, and the judgment of the district court of Tulsa county is hereby affirmed.

BAREFOOT, P. J., and DOYLE, J., concur.