author: DAVENPORT, P. J.

text:
    WILSON PHILLIPS v. STATE.
    No. A-9337.
    Feb. 25, 1938.
    (76 P. 2d 1083.)

      H. M. Shirley, of Coalgate, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The parties in this opinion will be referred to as they appear in the trial court. The defendant Wilson Phillips was by information charged with murder, convicted of manslaughter in the first degree, and sentenced to be imprisoned in the state penitentiary at McAlester, for a period of ten years. The record was properly saved, and from the verdict and judgment the defendant has appealed.

It is admitted by the defendant he shot the deceased, Gene Lankford, from the effects of which wound Lankford died. The substance of the testimony of the state as to what took place between the defendant and deceased just prior to the killing and immediately thereafter is controverted; the evidence being conflicting.

Butch Jackson, a witness called on behalf of the State, stated:

“I live at Coalgate; was employed as foreman by the WPA; I know the defendant Wilson Phillips; I was acquainted with Gene Lankford; I was in Coalgate the night of June 26,1936; standing near the corner where there used to be a barber shop, I was about ten feet in front of my car; I saw Wilson Phillips and his wife that evening and Gene Lankford and his wife; there was a sign board on the side walk near a post — I hardly know how far the bill board was from the post, it would be a guess — I saw these parties walking along there; when Lankford was about even with the sign I heard him hollow, ‘Don’t do that,’ and he ran. I hear a shot. Lankford went across to the Peoples Drug Store. I heard other shots, there was between four and five shots I figure; I went over to where he was. I did not see the wounds in his body. Walter Clark was there, and I called Earl Ott over to where the deceased was; I saw the gun in Wilson Phillips hands; the gun you have handed me Wilson Phillips had the night of the killing. I went over to where the deceased had fallen and his wife was there, she kissed him and he said, ‘They got me.’ Charles Waters, Godfrey, and Mrs. Lankford were there; I remained at the scene until Mr. Slater came with the ambulance.”

On cross-examination witness stated:

“Deceased did not give his wife anything while she was there with him. The way I tell it is the way it occurred.”

Elbert Green, testifying for the state, stated:

“My name is Elbert Green; I live at Coalgate; I was in Coalgate the night of June 26, 1936; I went to the place where Gene Lankford was on the sidewalk; I saw Mr. Middleton, another fellow and Gene’s wife; she knelt down by his side and kissed him, and he said something about I did not think you would come, and they got me, or something like that; he called for water and the Doctor drove up and looked at him and said, ‘Send him to the hospital.’ I saw Gene’s broad brimmed hat lying there, a shot had gone through the crown; I was the first one to get to Mr. Lankford; I was in the restaurant and some one said there was a shooting outside; I had known Gene Lankford for three or four years; I did not know of any trouble between Lankford and Phillips; I did not see Lankford give his wife anything.”

Earl Middleton, testifying, in substance, stated:

“I am employed by the WPA; I was in Coalgate the night Gene Lankford lost his life; I was standing there and a fellow came along and we were talking; I saw the flare of the gun across the street and rushed over that way; it looked like it was near the stop sign in the intersection of main street; when I saw the flare of the gun I saw Gene Lankford run across Main street to the drug store; the shots seemed to be directed at Gene Lankford as he ran; after the shot was fired I went down to where Lankford was lying on the side walk; he said, ‘They liked to have got you too, honey’; she said something in reply but I did not get it clear; he said, ‘Honey, it was cold blood murder.’ After his wife had his head on her knee she wiped his brow and made some statement but I don’t know what she said.”

On cross-examination witness stated:

“I saw Lankford running and the fire was directed at him; I saw no woman there at the time. Mr. Green was there when I got there, and his wife got to Lankford about the time we got there.”

R. D. Godfrey stated his home was at Ardmore:

“I was in Coalgate the night of June 26, 1936, when it is alleged Wilson Phillips shot Gene Lankford; I was going down the street, going north, instead of turning where I should have turned I went a block further and made a ‘U’ turn; I heard some shots as I came back up the street and saw a man running across the street; he was bleeding; he stopped practically in front of me; I pulled in to the drug store and told them to call an ambulance and remained there until the ambulance came; I saw a lady come up to the party that was shot, and I heard Mr. Lankford say it was cold blood murder. I asked who was shot and they said it was Gene Lankford, and that Wilson Phillips had shot him.”

On cross-examination witness stated:

“I saw the party crossing the street at the intersection; Mrs. Lankford was not at the place where Lankford fell when I got there; I saw a man walk up to where Lankford was; I did not see Lankford give his wife anything. I did not know Middleton by name, I saw some man there.”

Wesley Ott stated:

“I live at Coalgate, was born and reared in this county; I was on the street the night Wilson Phillips shot Gene Lankford; I am night watchman and had started to make my regular rounds, and at this corner I saw some kids, and some shots were fired and I saw some one running down the street; this fellow hollowed, ‘Oh,’ and I ran over there and it was Gene Lankford. I made the crowd stand back, and they took him from the street to the hospital. I got Wilson Phillips and put him in jail. Phillips did not make any statement that I heard. I did not know of any trouble between Phillips and Lankford. There was a light on the street and you could see very well. As this man was coming down the street I heard some shots.”

On cross-examination witness stated:

“He heard four or five shots; when I heard the first shot I went to the corner and saw the man running down the street.”

Mrs. Homer Dollar stated:

“I am related to Gene Lankford, he was my brother; my husband is Homer Dollar, I was a Lankford before I married. I went to Breco Hospital, at Ada, to see Gene on the 27th day of June, 1936; I got there about 11:30 in the morning, he was conscious at that time. Gene Lankford was 37 years old; he had been married more than once, has two children.”

On cross-examination witness stated Gene Lankford’s children were by his first wife.

Arizona Lankford, testifying for the defendant, stated:

“I am the wife of Gene Lankford; we were married on the 24th day of December, 1934, and lived with my father for a while. I was sick and Gene and Wilson had some trouble at our house; Mildred Nichols and my sister were present at the time; Wilson jumped up and Gene ran to get his shot gun; I do not know how the trouble came about. I was called by the state at the examining trial. I was in Coalgate on the 26th of June, 1936, with Wilson Phillips and his wife; when I first saw Gene he was in front of the Mayer Hotel; he grabbed me by the neck and wanted me to go with him, he grabbed me and almost jerked me down, and said, ‘To hell with the son of a bitch,’ that I was going with him; he had a knife; Gene was a heavy set fellow; the knife was open when he gave it to me after he was shot. I have seen the knife a lot of times.”

On cross-examination witness stated:

“That when Wilson fired the first shot he was standing kindly to the right of me when Gene jerked my arm; when Gene started running he started off of Main street, and was on the left side; Wilson and his wife were on the south side of me, and on the south side of Gene when he fired the first shot; I did not see Gene run behind that sign board; when he jerked me down I don’t know what happened. When Wilson got after Gene he was nearly behind me (this way) ; Gene was in his shirt sleeves and Wilson was also in his shirt sleeves; I did not know that Wilson was carrying a gun.
“I did not file a petition for a divorce; I understand the petition had not been filed. I don’t know how far the houses are apart, about 30 or 40 yards; I saw Wilson in the yard; I was in the east room when Gene started with the shotgun; I figured he was going to do something, I jumped up and grabbed him; I had not heard of any trouble between them; when he got the shotgun I thought he was going to kill Wilson; I lived with him until the first day of June, and left because he came home and beat up on me, and I came home. I do not know how long he has been back from the hospital.
“I did not hear Gene say when I got to him after the shooting, ‘They almost got you, honey, nor did I hear him say it was cold blood murder. Godfrey came up there but left. I know Mr. Middleton but did not know Mr. Green. I saw Butch Jackson that night; I had lifted Gene’s head on my knee, and he said, “Sugar, I did not think you would come to me but you did.’ He said, T guess it was coming to me.’ He did not draw a knife on me before the shooting but had his arms around my neck; he grabbed my arm and grabbed me around the neck. I went to a lawyer to get a divorce but the killing occurred before the petition was filed.”

Andrew London testified he was 36 years old; he lived west of Coalgate; was in Coalgate the night Gene Lankford was killed:

“I owed Mr. Phillips for a horse and came to town to pay him. I got to the corner of the barber shop and saw Gene Lankford and his wife up on the curb; he was talking and all at once he jerked her arm back and jerked her, and Wilson commenced to shoot; I stepped behind the barber shop.”

On cross-examination witness stated he was sure he saw the deceased and the defendant at the time of the shooting:

“I saw John Phillips about 8 o’clock, I went to the house and stayed there quite a while; walked out to the house; I came to town in a car, the road was rough is the reason I did not go out to old man Phillips house in a car. I had bought a mare from Mr. Phillips and was to pay him $25.00. I do not remember seeing Butch Jackson or any of the other parties; I don’t remember positively that I saw Mr. Shirley.”

Jim Heath also testified for the defendant, and stated he lived near Coalgate; he had a conversation with Gene Lankford concerning Wilson Phillips on Sunday before Gene was killed:

“I was in the court house and Gene Lankford asked me to haul him to a choc joint, and I told him I would, and before we got to Main street he wanted to go to Phillips’, said he wanted to get his wife.” Objections were made and the court finally said: “Tell what he said about Wilson Phillips? A. He told me to tell Wilson I am going to get him or make his sister come back to me. I communicated the statement to Wilson Phillips.”

On cross-examination witness stated he was with Lank-ford about 20 minutes and defendant jumped on him. Witness was not sure he was very friendly with Lankford. “I did not take Lankford to where he bought a pint of whisky and we drank it.”

Frank Witt testified for the defendant and stated he was constable and was acquainted with Gene Lankford and his wife. “I had a conversation with Lankford about Wilson Phillips right at his home near me, within 100 yards of my place.

“This conversation was about the first of June. Lank-ford was drinking and wanted me to come up there; he and his wife were separated and he wanted me to take the place, and said he was going to take his shotgun and go to Coalgate and kill out the whole Phillips bunch; I reported this statement to old man Phillips; I am sure Wilson was there in the house at the time I told the old man.”

On cross-examination witness stated he was constable at the time he was being examined.

“He asked me if I wanted a drink and I told him I don’t mind if I do. The loaded shotgun was there and had only two shells. Wylie Snow was county attorney and Walter Clark was sheriff. I did not tell either of them what Lankford had said; I did not make any application to have him put under a peace bond.”

Skud McKinney stated:

“I live at Harden City; I was in Coalgate in May or June and saw Gene Lankford back of his house on the highway; he said Phillips caused trouble between him and his wife and he was going to blow him up, going to put him out. He seemed to be mad; Gene had a violent temper; I told Wilson Phillips what Gene had said.”

On cross-examination witness stated:

“I told Wilson Phillips what Lankford had said the next time I saw him. I came down here for some Indians and traded with them for their interest in some lands; one of the Indians, Charley Anderson, lived down below Kiowa. I stopped at Lankfords to get some whisky; we got him out of bed, it was just before daylight, Buck Taylor was with me. We went right away and told Phillips what Lankford had said; we found Wilson at John Phillips’; we went to the Phillips home looking for whisky. I heard about this killing the night it happened. I was in Stonewall at the time.”

Eleen Elnoy stated he lived at Phillips’:

“I have lived there practically all my life; the Phillips place is about three blocks from Gene Lankford; I had a conversation with Gene on the road about the first of June and he said he would kill the son of a bitch, and said Phillips was no account at all; the trouble was all caused by him in his home, if it was not for the Phillips’ he could live with her; he'threatened all the Phillips family, was going to blow them up. My occasion for being there was Lankford had beaten up his wife; he came after her but she was gone.”

On cross-examination witness stated:

“It was about four o’clock in the afternoon that Lank-ford was doing this talking; he was mad and drunk. I told Wilson Phillips about what Lankford said.”

Lee Fathree, called as a .witness for the defendant, stated:

“My name is Lee Fathree, I live in Coalgate on North Broadway about three blocks from Lankford and Wilson Phillips; Lankford talked to me about a week or ten days before he was shot; he came to my house about 8 o’clock, shortly after dark, and I saw he had been drinking; he said Wilson caused all his trouble, and I am going to kill the son of a bitch; I am going to blow the whole damn outfit up; they did me wrong in taking my wife away from me. I replied to him, I would rather he would not talk that way. I told Wilson Phillips what Lankford had said.”

Mrs. Wilson Phillips, wife of the defendant, stated:

“I am the wife of Wilson Phillips, the defendant. I was with him the night of the shooting when Gene Lankford was killed; we started to the show and Gene met us at the hotel and stopped Arizona and took her with him, and when we got to the show he turned and walked on and said, ‘You are still married’; she came in the show and sit down with us; when we left the theatre we came on down the street to where the trouble occurred, and he said something and wheeled and threw his hand into his right pocket and said, ‘I will kill the son of a bitch,’ and Wilson shot.”

On cross-examination witness stated:

“Wilson had on pants and a white shirt, and Gene had on pants and a gray shirt; when we stopped on the corner Wilson and I were not very far from Gene and his wife; I saw Gene have something, but I do not know what it was; Wilson was standing on the south side of Gene by his left side; I saw Gene jerk his wife before Wilson begin to shoot.”

The defendant, Wilson Phillips, stated:

“I have lived in Coalgate something like 20 years. Gene Lankford was my brother in law. Quite a few came and told me about threats Gene had made against me; I first thought he was joking; Gene was overbearing and kept making these threats until I was afraid of him and went to carrying a pistol. The night this killing occurred me and my wife and sister was going to the show and met Gene at the Mayer Hotel, and he took two or three steps with his wife and she told him to leave her alone, she was going to the show with me.
“I bought three tickets and we three sat down together; in a moment Gene came in and sat down by sister; it looked like he was messing with her and she was afraid of him; he asked her to move away from us; after the show we came out and Gene had his arm around her and kept pulling her and said, ‘Gene, go away and leave me alone,’ and he got back at her, and I tried to pay no attention about it; when we crossed Main street and got to the corner Gene jerked her and shoved his hand back; I did not know what it was he was reaching for. I understood him to say something about this son of a bitch, and when he jerked her I seen something glitter and I started shooting at him; I feared that my sister’s life or my life was in danger, as I had been told he had made threats against me. He had shot at me once before, at that time he got out of his car and hollowed to me, and said, T am going to pistol whip your head off,’ and did not say another word to me, just hit me two or three times, and fired one shot under that arm on the left side; three or four on the street prevented him from shooting any more. If I am not badly mistaken I fired five shots the night Gene Lankford was killed. The gun is a thumb buster, and when you pull it back and turn it loose, I would not say whether it shot the last time or not.”

On cross-examination witness stated:

“When we came up the street that night Mrs. Blanche and I walked behind, and we walked under that street light; if you were not looking you could hardly say whether the deceased had a gun or a knife; he could have had a gun or a knife under his shirt and I would not have seen it; he went down this way and came up and something flashed (indicating) and I did not know what it was and commenced shooting.
“The time Gene Lankford shot me was before he and my sister were married. I don’t know which shot struck Gene, if I am not mistaken it was the fourth shot and I did not fire any more; I was about as far as from here to Judge Snow; I did not dodge behind a sign-board; I do not know which shot went through the shop, nor do I know the two shots that went through the board; when I saw something flash in his hand I thought it was time to get started; I cannot say how long it has been since Gene Lankford returned from the penitentiary. I used to deal in horses, but the last two or three years I have not dealt much.
“By Mr. Shirley: We object to the horses. By the Court: You will have to make him your witness. By Mr. Gassaway: I will do that. Q. Didn’t you and him have some trouble about some horses? A. No. Q. Don’t you know that before he was killed he claimed horses you had sold? A. No, sir. Q. And don’t you know yesterday or today you asked Walter Clark if he had a warrant for you for stealing horses ? A. No, sir. By Mr. Shirley: We object to that. By the Court: That would not be admissible only to go to the motive. Gentlemen of the jury, you will not consider that except to show the feeling that may have existed between the parties. Q. Wilson, you have been arrested a great many times? By Mr. Shirley: We object to that. By the Court: You may ask him if he has been convicted of any crime involving moral turpitude. Q. I will ask you have you been involved in any crime involving moral turpitude? A. No, sir. You have a record here. Q. You have never been in a federal jail or penitentiary; all your time has been in the county jail at Coalgate? A. For whisky; I did 91 days in the Coal county jail for that. Q. Isn’t it a fact that for several years you have carried a six shooter? By Mr. Shirley: We object to that. By the Court: That would only be good to show who was the probable aggressor in the matter. It isn’t true that when I fired the first shot this boy started to run; when I shot two or three shots he hollowed, and he was coming straight toward me; I fired at him two or three shots, but did not hit him; it must have been the fourth shot that hit him, after that is when he hollowed; when he jerked his wife flat I fired the first shot at him — in a way yes and in a way no — my sister was between Lankford and I when the difficulty started; he didn’t start to run until he hollowed and started across the street, but walked plenty pert and I stood there and looked at him. Butch Jackson was there and I said to him, take this gun, I have shot a man, and call Walter Clark. One of the McGinnis boys was there and said, ‘There is Willis.’ I did not shoot between the cars.”

On recross-examination the defendant stated:

“Some people were sitting in a car, I don’t know who they were: I did not see Andrew London that night. Butch Jackson was there at the Palace and wasn’t on the street when I shot.”

George Willard, testifying for the defendant, stated:

“I live at Coalgate.” After several objections:
“By the Court: Did Lankford make any threats against Wilson Phillips? A. He said he was going to blow the Wilson outfit up. I told Wilson the next day about what Lankford had said. In a way I am friendly with the Phillips’.”

Elam Pebsworth testifying, stated:

“I was acquainted with Gene Lankford, and also acquainted with Wilson Phillips. Gene came in one day and said he was going to shoot a man and called me to the back door and said, ‘This is the man I am going to shoot,’ and I said, ‘You can’t do that here.’ The man was Wilson Phillips.” On cross-examination witness stated Gene said he was the man; Wilson came in the shop.

Wilson Phillips, the defendant, was recalled for further direct examination, and stated:

“My sister came to me for protection; Mrs. Ellington brought her to my house, Gene had beat her up until she could not walk; there was a hole in her leg.”

On recross-examination witness stated:

“I could not be exact as to how long ago that was, but it was the night sister came in and Gene came and got her and made her go home that night; I was there when he came and let her go back with him. Q. In order to test your memory a little bit, did you ever sell a man named Arnold a pair of bay mares in Tulsa? By Mr. Shirley: Object to that. Will prejudice the jury. By the Court: Overruled. By Mr. Shirley: Exceptions. A. I do not know him, I did not sell any mares in Tulsa at no time.”

O. C. McMillan, testifying for the defendant, stated:

“I am undersheriff; one day I was called by Gene Lank-ford at Phillips on account of some trouble. We got down there and saw Gene and his wife; I talked to her quite a bit; I could not say whether his wife was beat up on that occasion, she had bruises on her neck and around on her in places; Gene did not tell me what had happened. She came back to the office with me; I don’t remember what happened.”

On cross-examination witness stated:

“I believe it was in May of the year this case was being tried. I knew Gene Lankford at the time. Q. I will ask if at that time you had a transaction on a team of bay mares? By Mr. Shirley: Objected to as incompetent, irrelevant and immaterial. By Mr. Gassaway: I will make him our witness and will show he gave a mortgage on the very mares Wilson Phillips sold. By Mr. Shirley: We object to that. By the Court: To show knowledge go ahead. By Mr. Shirley: Exception. Q. Did he, Mr. McMillan? A. He did not give a mortgage but Earmin Raines did. That was on the mares before Gene did. They were bay mares, and one would weigh about eleven hundred and one nine something. Q. At any time did Lankford report to the sheriff’s office that these mares were stolen? A. Yes, sir. He wrote us a letter, I believe he wrote me a letter to me. By Mr. Shirley: I want to file an objection. By the Court: Overruled. Exception. Q. He was at that time in the penitentiary at El Reno and wrote you about the mares ? A. No, sir. By Mr. Thread-gill : Comes now the defendant and moves to strike all this testimony about the mares for the reason that it is incompetent, irrelevant and immaterial, and asks the court to instruct the jury to that effect. By the Court: Overruled. By Mr. Threadgill: Exceptions.”

Arizona Lankford was recalled, and testified as follows:

“After they brought me home they come and got me and took me back home; the reason I went back he drew a knife on me, put his arms around my neck. I have the knife now. The knife you exhibit is not the knife he had. I did not return to my home of my own free will and accord; witness stated the trouble happened out at my sisters house; my sister was in bed sick; she was living in a little house I had moved from. I don’t know whether he came to my father’s house or not. He stuck the knife in my side and said, ‘You son of a bitch you are coming home with me’; Wilson and his wife were at the house at the time taking care of my sister who was sick. Q. Is this the same knife Gene Lankford had when he was killed? A. Yes, sir. Q. And it is in the same condition it was that night? A. Yes, sir. It was open when he gave it to me. He had a knife in his hand when I got to him; neither Mr. Green or Mr. Godfrey was there when I got to him.”

Albert Arnold, called in rebuttal by the state, stated:

“My name is Albert Arnold; I live in West Tulsa; I have seen the defendant twice; I bought a pair of mares from him. By Mr. Shirley: Objected to as incompetent, irrelevant and immaterial, and tends to impeach the state’s own witness. They made Wilson Phillips their witness on that proposition. By the Court: Overruled. By Mr. Shirley : Exceptions. By Mr. Shirley: Hasn’t proved anything was stolen yet. By the Court: Overruled. By Mr. Shirley: Exception. I bought two mares from Wilson Phillips; I have been down here attending the trial, think I came Friday, have been here a day or two; I have seen the defendant and shook hands with him; Ralph Fisher was with me and we went to Ralph Fishers and stayed three or four days; he did not give me a title to the mares when I bought them; he said, ‘You know the Bishop boy’; I don’t remember whether he told me his name or not; he is the man that sold me the mares, one would weigh about one thousand and the other 1,200 pounds. By Mr. Shirley: We renew our objection. No evidence to show that Gene Lankford owned any mares. By the Court: Overruled. By Mr. Shirley: Exception.”

On cross-examination by Mr. Shirley:

“Q. Were you ever in the penitentiary? A. No, sir. I saw Wilson Phillips in Tulsa; I did not get his name; I have been in the business of buying mules and horses a long time and never took a bill of sale in my life; I claim to be a business man; I sell mules and horses, and that is all I do. Since I have been here Mr. Phillips asked me what I knew about this ease and I said nothing; that was old naan Phillips; he said, ‘Are you sure he was the boy,’ and I said, T will swear to the truth, it was him,’ and he said, ‘You had better not swear that.’ ”

On recross-examination witness stated:

“When I bought these mares I was buying a lot of stuff. I don’t buy stolen property if I know it. I know there is a lot of stolen property in this country. Some times I ask questions and some times I don’t. By Mr. Shirley: Defendant moves to strike all of this testimony on the ground that it is incompetent, irrelevant, and immaterial. By the Court: Overruled. By Mr. Shirley: Exception.”

Walter Clark, a witness for the state, stated:

“My name is Walter Clark; I was sheriff on the 20th day of June, 1936; I went with Gene Lankford to Tulsa, Okla., searching for these mares; I found this old man that just testified; Wilson Phillips during the trial asked me if I had a warrant for him for stealing horses. By Mr. Shirley: We object to that. By the Court: Overruled. Exception. I told him I did not have a warrant; that was about June 20, 1936; we had a letter from deceased while he was in the reformatory, and after he got out he came to see me; it must have been six months before he got out that he wrote this letter about the mares; I did not know that for four or five months after he got out he lived in the house with Wilson Phillips’ family; he lived there somewhere; as far as I know they were friendly. Mr. Threadgill: Comes now the defendant and moves to strike the testimony of this witness for the reason that it is incompetent, irrelevant and immaterial, and tends to prove no issue in this case. By the Court: Overruled. By Mr. Threadgill: Exception. By the Court: Gentlemen of the jury, it is permitted to go before you for the only purpose to show motive and who was the probable aggressor at the time of this difficulty.”

The foregoing is the substance of the testimony.

The defendant has assigned three errors as follows:

“1. The verdict of the jury is not supported by the evidence and is contrary to law.
“2. The court erred in overruling the defendant’s demurrer to the state’s testimony in chief.
“3. The court erred in overruling the defendant’s objections to the introduction of testimony tending to show that the defendant stole and sold a pair of mares belonging to the deceased while the deceased was in prison in El Reno, Okla., which was prejudicial to the rights of the defendant.”

The defendant in his brief argues at length that the court erred in admitting incompetent, irrelevant, and immaterial testimony not a part of the case, but relating to the actions of the defendant in other matters. The defendant urges that the court permitted the state to question the defendant on immaterial crimes and matters not growing out of, or related to, the charge of murder, which was incompetent and tended to prejudice the jury against this defendant, and defendant insists that this evidence insinuating that he had committed other crimes, where no proof was furnished to sustain them, was prejudicial to his defense to such an extent that he is entitled to have his case reversed.

We cannot agree with the defendant that the admission of the testimony complained of was such an error as would entitle him to a reversal. Most of the testimony complained of by the defendant was introduced for the purpose of showing a motive actuating the defendant to take the life of the deceased. Some of the testimony complained of was immaterial and foreign to the issues joined in the case for which the defendant was being tried, and was inadmissible. The testimony complained of is set out in full in this opinion.

In Reynolds v. State, 49 Okla. Cr. 215, 292 P. 1046, in the second paragraph of the syllabus, the court said:

“The admission of incompetent evidence is not grounds for reversal, unless it affirmatively appears from the record that the appellant was injured thereby.” Littleton v. State, 19 Okla. Cr. 461, 200 P. 716; Mayse v. State, 38 Okla. Cr. 144, 259 P. 277.

After a careful examination of the record we do not believe the admission of the testimony complained of prejudiced or injured the defendant’s right before the jury. It is possible that it may have influenced the jury to the extent of fixing the punishment at ten years.

It is next urged by the defendant that the verdict is contrary to law, and is contrary to and not sustained by the evidence. We cannot agree with this contention. The defendant admits he fired the shots that took the life of the deceased, Gene Lankford, and as a defense he insists the deceased had grabbed the sister of the defendant, and the wife of the deceased, around the neck and jerked her down, and used the word s — ■ o— b — ; as the deceased jerked his wife down, the defendant saw something in deceased’s hand, and he then began shooting. The reason given for his quick action in shooting was that the defendant at different times had threatened to blow up the Phillips family, and threatened to do bodily harm to the defendant or take his life, and he believed from the standpoint of the defendant it was time for him to begin shooting. Other witnesses claim they saw the shooting and saw the deceased running until he fell on the sidewalk. The wife of the deceased testified when he fell he had a knife in his hand, and that he gave her the knife. Neither of the other witnesses saw the knife. This brought about a conflict in the testimony of the defendant and the eyewitnesses, and the wife of the deceased; the wife testifying the deceased had a knife, and the defendant testifying he saw something in deceased’s hand before he fired. Other witnesses stated they did not see anything in deceased’s hand, and did not see the deceased give the knife to his wife.

This court has often held that conflicting issues of fact are for the sole determination of the jury. Adams v. State, 54 Okla. Cr. 363, 21 P. 2d 1075.

“Conflicting issues of fact are for the sole determination of the jury. A conviction will not be disturbed on appeal because of conflicts in the evidence, if the evidence adduced reasonably tends to support the verdict and judgment.” Pickett v. State, 35 Okla. Cr. 60, 248 P. 352.

In Underwood v. State, 36 Okla. Cr. 21, 251 P. 507,508, in the fourth paragraph of the syllabus, this court said:

“Conviction can be reversed as not supported by evidence only if no substantial evidence tends to show guilt, or evidence is so insufficient that jury must have acted from partiality, passion, or prejudice.”

The jury is the exclusive judge of the weight of the evidence, and if there is a clear conflict in the evidence, or it is such that different inferences can properly be drawn from it, this determination will not be interfered with unless it is clearly against the weight of the evidence. Campbell v. State, 23 Okla. Cr. 250, 251, 214 P. 738; Choate v. State, 37 Okla. Cr. 314, 258 P. 360.

The record fails to disclose that the jury was influenced by passion or prejudice. The court in its instructions clearly declared the law applicable to the facts in the case, and the jury, after hearing the evidence, the instructions of the court, and the argument of counsel, by its verdict found the defendant guilty. We hold there is sufficient testimony to sustain a conviction.

In view of the fact that the defense in this case was self-defense, and that the state was permitted over the objection of the defendant to introduce certain evidence with reference to the larceny of some horses and other actions of the defendant, the testimony admitted over the objection of the defendant, and for which he insists the case should be reversed, may have influenced the jury in fixing his punishment at ten years. Considering all the facts and circumstances in the record, we believe the punishment inflicted is excessive, and that justice would be properly met by a modification of the judgment from ten years to five years in the state penitentiary, and, as modified, the judgment is affirmed.

DOYLE and BAREFOOT, JJ., concur.


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    GUY MILLER BOARDWINE v. STATE.
    No. A-9317.
    Feb. 25, 1938.
    (76 P. 2d 1081.)
    Joe Adwon and James L. Gowdy, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DOYLE, J.

The information in this case charged that in Oklahoma county on the 3d day of October, 1936, Guy Miller, alias Guy Howard, alias Guy Boardwine, alias Guy Miller Boardwine, and F. J. Kenard, did unlawfully have the possession of 5,520 pints of whisky, gin, and divers others kinds of intoxicating liquor, with the unlawful intent to sell, convey, and to otherwise unlawfully dispose of the same.

Upon his separate trial the jury returned their verdict finding the defendant, Guy Miller Boardwine, guilty as charged in the information, and that they were unable to agree upon the punishment.

On June 5, 1987, his motion for a new trial was overruled. Thereupon the court rendered judgment and sentenced the defendant Boardwine to pay a fine of $75 and be imprisoned in the county jail for a period of 45 days, and that he pay the costs.

From the judgment he appeals and assigns as error the overruling of his motion to suppress a portion of the evidence obtained by an unlawful search and seizure of his automobile; and that the verdict of the jury is contrary to the law and the evidence.

The undisputed evidence for the state shows that on the date alleged, several deputy sheriffs, in executing a search warrant, searched the defendant Boardwine’s place of. business, a restaurant on May avenue, adjacent to Oklahoma City, and found no intoxicating liquor on the place, but observed in a car parked nearby packages of whisky on the floor and on the seat. They also observed through windows in a barn nearby cases and bottles of intoxicating liquor, so two of the deputy sheriffs returned to a magistrate and procured a search warrant for the barn and premises. When the officers returned with the search warrant, they arrested the defendant Boardwine and took from him the key to the car and unlocked the car and searched it, and found 18 pints of whisky in the car; they searched the barn and there found more than 5,200 pints of intoxicating liquors.

The defendant admitted the ownership of the intoxicating liquor found in his car, but denied the ownership of the intoxicating liquors found in the barn.

The record shows that after the jury was impaneled and sworn, the defendant Boardwine moved the court to suppress the evidence of the officers obtained by search of the defendant’s automobile, for the reason that the search was made without affidavit for search warrant and without search warrant, and for the further reason that the information charges the defendant with possession of 5,520 pints of intoxicating liquor, and evidently does not refer to the possession of any intoxicating liquor in this defendant’s automobile. Which motion was by! the court overruled.

Counsel for the defendant excepted on the ground that defendant was not given an opportunity of presenting evidence thereon.

Thereupon the court stated:

“You always have your opportunity, gentlemen of the jury» you may be excused for a few minutes.”

And further stated:

“Let the record show the ruling on the motion is set aside, the defendant may offer his proof.”

On the motion to suppress Guy Miller Boardwine testified that he was the owner of the automobile, a Ford V 8 Coupe, 1936 model; that the whisky the officers found in the car was his whisky; that the officers did not have any search warrant for that automobile.

On cross-examination he stated the officers told him that they had a search warrant for the barn and premises; that the whisky found in the barn did not belong to him; that before they went to the barn they arrested him and searched him and took his car key and went and searched his car.

It is contended on the part of the defendant that the search and seizure of his automobile was illegal and in violation of his constitutional and statutory rights, and that the admission of the evidence so obtained prevented the defendant from having a fair and impartial trial.

When the state rested the defendant interposed a demurrer to the evidence on the ground that the same was obtained by an unlawful search and seizure, which demurrer was overruled. Defendant then moved the court to direct the jury to render a verdict of acquittal, for the reasons stated. Which motion was overruled. Exception allowed. There was no testimony offered on the part of the defendant.

The complaint or affidavit and the search warrant issued thereon and executed by search and seizure of the liquor found in the defendant’s car, and in the barn, were not offered or introduced in evidence in support of the motion to suppress the evidence.

There was no competent evidence to overcome the presumption that the search and seizure made thereunder was in strict conformity with the search warrant. It appearing that the defendant was under lawful arrest, the officers had a right as an incident of that arrest to search his car and person where they saw him violate the law.

In Washington v. State, 37 Okla. Cr. 415, 259 P. 150, 151, we said:

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

In Bailey v. State, 39 Okla. Cr. 159, 263 P. 1114, this court held:

“The constitutional right to immunity from unreasonable search and seizure and its consequences is personal. An accused will not be heard to object that a search of the premises of some third person is a violation of the constitutional inhibition.”

In Ellige v. State, 39 Okla. Cr. 262, 264 P. 220, this court held that:

“The right to complain of an illegal search is personal. A defendant will not be heard to complain that a search made of the premises or property of a codefendant is illegal.”

And see Strickland v. State, 40 Okla. Cr. 94, 267 P. 672.

It follows that the motion to suppress the evidence was properly overruled, and that the defendant’s demurrer to the state’s evidence and his motion for a directed verdict of acquittal were both properly overruled.

The admissions against interest made by the defendant Boardwine were conclusive as to his guilt of the oifense charged.

The record discloses no material error, and it appearing that the defendant had a fair and impartial trial, the judgment of the lower court is accordingly affirmed.

DAVENPORT, P. J., and BAREFOOT, J., concur.


text:
    GARNETT SEVERE v. STATE.
    No. A-9339.
    March 4, 1938.
    (77 P. 2d 116.)

      A. J. Stevens, of Alva, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, referred to in this opinion as the defendant, was by information charged with intent to carry, convey, and transport intoxicating liquors; was convicted and sentenced to 60 days’ imprisonment in the county jail and a fine of $50 and cost of the action. From the judgment and sentence of the court the defendant appeals.

The testimony on behalf of the state of Neis Nelson and Ken W. Greer in substance shows that Greer and Nelson for some reason suspicioned the defendant was going to be coming to his home with intoxicating liquors; they drove their car down the road where they expected the defendant to pass and parked and turned the lights out and were sitting in the car when another car came toward their car going in the opposite direction. The driver of the car hesitated and then put on his motor power and did not stop for the officers, but drove very close to the officers’ car, and the sheriff and deputy claim the defendant was the man in the car that raced past them, and identified the defendant as the man driving the car.

They further stated they turned their car as soon as they could and followed up the road in the direction the car that passed them was going; after driving some distance up the road they lost track of the car and turned and came back to a wheat field, and there discovered on the frost a car had driven out into the field; they followed these tracks and found a large quantity of whisky; later on that night they went to defendant’s home and inquired for the defendant and received word from the defendant’s wife or some one who was there with her that the defendant had left that afternoon to go to Enid.

Neither of the officers claim to have seen the defendant in possession of the whisky; the only evidence tending to connect the defendant with the whisky is that the officers claim they found it in a wheat field; that as the defendant hurriedly drove by them they recognized him as the driver of the car; they did not see the defendant turn into the wheat field, or go out to where they claim they found the whisky; they saw the fresh tracks on the frost on the ground, which they followed to where they found the whisky. The foregoing was the substance of the testimony offered by the state.

The defendant at the close of the testimony demurred to the evidence of the state, “for the reason that it wholly failed to prove by competent evidence that Garnett Severe ever had any liquor in his possession; or that there was any liquor transported by him; or that he had anything to do with any liquor, and has wholly failed to prove any of the allegations of the information.”

The defendant, Garnett Severe, testifying in his own behalf stated:

“In January, 1937, I was living a half mile south and four miles west of Alva, four miles and a half south of Hopeton, on the east side of the road; on the night of January 25, 1937, I was at Enid, Oklahoma; it was a rather cold day with sleet and frost on the ground and lots of ice. I started on my way to Enid about 3 o’clock on Monday, January 25, 1937, went from my place to Carman, and stopped and picked up my wife’s uncle, Dennis Shockley, and drove to Enid, reaching there about 6 o’clock; after I had been in Enid a while we went tá the Oak Rooms and asked for a room but we did not register that time; Mr. Shockley was with me, we ate our supper at the E and J Cafe on East Randolph, a block north and east of the court house; Bob Weaver was cook and I had known him five years, after we ate our supper we drove out to the Weaver home, he lived about a mile from the cafe; Mr. Shockley went with us and we remained until about 10:30 visiting; his wife was sick and when we left Mr. Weaver went with us to town to get his wife some medicine; he wanted to walk back home but I told him to take the car home with him and drive it down the next morning; we were within a block of the Oak Rooms; I did not see Mr. Weaver any more until about 8 o’clock the next morning. Mrs. Letha Staker runs the Oak Rooms; I registered for myself and Mr. Shockley, January 25th, 1937; the day of the week was Monday; Mr. Shockley and I slept together that night.
“I did not meet Mr. Nelson and Mr. Greer in the road the night they testified I passed them, nor did I see them the next day. I ate my breakfast at the Silver Moon restaurant in Enid; Weaver was with us as he did not go to work until 12 o’clock noon; Mr. Shockley was with me all the time; on January 26, 1937, between 2 and 3 o’clock in the afternoon we started home, and went straight to Dennis Shockley’s home; we went through Cleo and up that way; I got home about sun down, almost dark. When I got home my wife and Ira Drumheller was there; I was not at home the night of January 25th, and was not there until almost dark the next evening; I was not in any field the night of January 25, 1937; I had been there several days prior to that time for the purpose of rounding up cattle in the wheat field that belonged to Mr. Zipp, I think; I was not in the neighborhood where the witnesses testified I passed them the night of January 25, 1937, nor was I there on the morning, of the 26th; I had not run into Neis Nelson’s car. The officers arrested me the morning of the 11th of February as I was returning from Arkansas; at Carman; I went to Arkansas with my wife, my sister, her daughter and baby; my wife returned before I did with some other parties; I was at my home from January 26, 1937, until February 2, 1937; at no time did I hide from the officers.”

Letha Staker, who runs the Oak Rooms, testifying for the defendant, stated the defendant and Dennie Shockley came to her rooming house the evening of January 25, 1937, and presents her register which shows they registered in room 13, and spent the night there; that the register was just as it was at that time.

Robert Weaver and his wife testified as to the defendant coming to the cafe where he was cooking, and then going to the Weaver home and spending quite a while with them, and letting Weaver drive the defendant’s car to his home and returning it the next morning.

Dennis Shockley corroborated the testimony of the defendant coming to his house and going to Enid with him on the 25th day of January, 1937, eating supper with him in Enid, going to the Weaver home and back to the Oak Rooms, where he says he and the defendant spent the night, and came home the afternoon or evening of January 26, 1937.

Mrs. Garnett Severe, wife of the defendant, stated where they were living in January, 1937; that they had a number of cattle and pastured them across the road from their house; she had often driven the cattle off the wheat field where the state witnesses claim they found whisky; that she helped her husband round the cattle up; that she often went on horseback. Witness further stated the night of January 25, 1937, a sheriff or deputy, or both of them, came to her home and asked where her husband was, and she informed them he had left that afternoon for Enid, intending to go by and pick up Dennis Shockley, and that they were in Enid so far as she knew. The officers came a second time that night to try and find her husband, the defendant.

Ira Drumheller corroborated Mrs. Severe as to the officers coming to the house and inquiring about the defendant and was advised by his wife he had gone to Enid.

Letha Davison testified she was a sister of the defendant ; that the defendant went with her to Arkansas; leaving the 3d of February, 1937:

“I had to be there on the 4th, and the defendant went with me to the court house at Waldron, Arkansas; his wife, my daughter and my baby went with us. Garnett helped my uncle set out a number of fruit trees on his farm in Arkansas before he returned.”

A number of witnesses testified as to the previous good character of the defendant.

On rebuttal, Ken W. Greer, the sheriff, testified he saw the defendant south of Waynoka on January 25, 1937; also testified as to the condition of the weather Wednesday, and on up until January 28, 1937.

Neis Nelson, in rebuttal, testified he saw the defendant on the afternoon or evening of January 25, 1937, on the highway south of Waynoka; witness was positive he recognized the defendant, but that he did not stop him and talk with him the afternoon as testified to by Nelson.

The defendant, called in surrebuttal, stated:

“I heard what the sheriff and deputy sheriff stated about seeing me south of Waynoka on the 25th; I was not on that highway the afternoon of the 25th, and I did not see them down there; I was in Enid or on my way to Enid as stated in my direct examination.”

Five errors have been assigned by the defendant as grounds for reversal of this case:

“1. That the verdict is contrary to law.
“2. That the verdict is contrary to, and not supported by the evidence.
“3. That the court erred in permitting the plaintiff, over the objections and exceptions of the defendant, to introduce incompetent evidence prejudicial to the rights of the defendant.
“4. That the court erred in refusing to permit the defendant, over his objections and exceptions to introduce legally competent and proper evidence in support of his defense.
“5. That the court permitted errors of law at the trial of said cause, over the objections and exceptions of the defendant.”

The errors assigned by the defendant will all be considered under one heading, and that is, Is there sufficient testimony to sustain the verdict of the jury? In order to properly consider the testimony introduced and ascertain whether or not the evidence is sufficient to overcome the presumption of innocence that follows the defendant throughout the trial, it is necessary to consider the testimony of the state. Neither of the witnesses saw any whisky in possession of the defendant. Neither of them saw him unload the whisky in the wheat field where they claim they found it. Neither of them saw him going in or coming out of the wheat field. The testimony wholly fails to connect the defendant with the whisky found by the state witnesses in the wheat field. The only testimony on behalf of the state that tends to connect the defendant with the whisky is the testimony of the state witnesses who were in the car on the road when the car drove up and they switched on their lights, and the car drove up close by their car, and they claim they recognized the defendant as the driver of the car, notwithstanding the windows of both cars were closed at the time and it was a cold night. The state did not introduce any evidence showing that the defendant was or had been engaged in the whisky business.

The defendant by his witnesses shows that on the night of January 25, 1937, the officer, one or both of them, came to his home twice to ascertain whether or not the defendant was at home; the first time they came to the home of the defendant they were advised by the wife of the defendant and other parties there that the defendant had left that afternoon stating he was going to Enid.

The defendant testifying in his own behalf stated he did go to Enid, and in going to Enid he went by the home of his wife’s uncle, Dennis Shockley, who joined him, and they went to Enid, reaching there about 6 o’clock that evening. ,

After spending some time in Enid, they drove down to the E & J Cafe, where a man named Weaver was a cook; Weaver and the defendant had been acquaintances for more than five years; Shockley and the defendant ate their supper at the cafe, and when Weaver got oif from work they got in defendant’s car and drove out to the Weaver’s home. Weaver and his wife both testify to this fact. Later in the evening the defendant, Shockley, and Weaver drove back to the business part of the city, and Weaver drove defendant’s car back to his home and kept it that night.

Letha Staker, who runs the Oak Rooms in the city of Enid, testified the defendant and Shockley came to her rooming house and registered in and were assigned to room 13; they left a call for 7 o’clock the next morning, and both Shockley and defendant occupied room 13. Mrs. Staker presented her register showing that Dennis Shockley and Garnett Severe registered with her on January 25, 1937, and were assigned room 13. The defendant and Shockley both testify they left Enid some time the afternoon of January 26, 1937, and the defendant stated he reached home about dark that day.

In Tislow v. State, 36 Okla. Cr. 346, 254 P. 511, in the first paragraph of the syllabus this court stated:

“While it is well settled that this court will not disturb a verdict on account of the evidence where there is evidence to support it, the converse rule is equally well settled that it is not only the province but the duty of the court to set aside such a verdict when it is contrary to the evidence, or where there is no evidence to support it.”

In Jefferson v. State, 31 Okla. Cr. 44, 236 P. 914, in the body of the opinion the court said:

“The salutary rule, as has frequently been announced by this court, is that the jury are the exclusive judges of the credibility of the witnesses, and where there is evidence from which the jury may reasonably and logically draw the conclusion of the defendant’s guilt, although the evidence is conflicting, the verdict will not be disturbed. Still, where there is a dearth of evidence and the guilt of an accused is not a logical deduction from the facts proven, the evidence is insufficient and the verdict will be set aside. Benson v. State, 10 Okla. Cr. 16, 133 P. 271; Owens v. State, 11 Okla. Cr. 113, 143 P. 204; Ren v. State, 9 Okla. Cr. 671, 132 P. 1131.”

Under the statutes of Oklahoma the defendant is presumed to be innocent until his guilt has been established by competent evidence beyond a reasonable doubt, and that presumption follows the defendant throughout the trial until overcome by competent evidence sufficient to convince a jury beyond a reasonable doubt of his guilt.

Is the testimony in this case sufficient to overcome the presumption of innocence guaranteed to the defendant; the undisputed evidence of the defendant showing at the time the state claims they saw the defendant on the road he was at another and different place? The state made no effort to impeach the witnesses testifying the defendant was in Enid the night the state witnesses claim they saw him on the highway and he passed them in his car; were the state witnesses mistaken as to the identity of the defendant, or are all the witnesses who testify for the defendant mistaken?

There is no competent evidence in the record to show the defendant was connected with the whisky alleged to have been found in the wheat field by the state witnesses after they claim he drove by them on the highway.

It is well settled that this court will not disturb the verdict on account of the evidence where there is evidence to support it. The converse rule is equally well settled that it is not only the province but the duty of the court to set aside the verdict when it is contrary to the evidence, or there is no competent evidence to support it. The performance of this duty on the part of the court is the exercise of legal discretion and judgment as to the sufficiency of the evidence to overcome the legal presumption of innocence to which every one is entitled who is put upon trial for an offense.

After a careful consideration of the evidence, we hold that the state’s evidence has wholly failed to overcome that presumption of innocence to which the defendant is entitled, and of his evidence of being at another and different place on the night the state witnesses claim to have seen him on the highway a short distance from his home.

There being no competent evidence to sustain the conviction, the judgment of the trial court is reversed.

DOYLE and BAREFOOT, JJ., concur.


text:
    ARMON HOLDEN v. STATE.
    No. A-9332.
    March 11, 1938.
    (77 P. 2d 587.)

      Ratliff & Clark, of Tishomingo, and J. Harry Swan, of Okmulgee, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, the defendant in the lower court, was by information charged with embezzlement of an Ajax four-door sedan, 1926 model car, alleged to be worth $100; was tried, found guilty, and the court sentenced the defendant to nine months in the penitentiary at McAlester. From which judgment and sentence the defendant, Armón Holden, appeals.

The facts in this case are brief, and it is not deemed necessary to set out the testimony in full. The defendant, Armón Holden, and the prosecuting witness, Fred Fowler, were brothers-in-law. Fowler owned an old Ajax 1926 car; in 1934 Fowler did not secure a license for the car, and the defendant made a proposition that he would take the car and give him a cow for it; the car was delivered to the defendant by the prosecuting witness, and the title to the car assigned to him, and defendant drove the car to town and bought a license and had the car fixed so it was in running order. The cow was delivered to Fred Fowler. After this trade is claimed to have been made, and partially admitted by the prosecuting witness, it was more than a year before the defendant saw Fred Fowler again. The defendant lost his wife, and at the funeral he saw the prosecuting witness, Fred Fowler.

It is further shown the defendant had used this old car for a while and it broke down and defendant left it at the home of a man by the name of Nelson, about seven miles south of Seminole; the condition of the car was such the defendant did not move it.

Later on defendant says when he went to where he left the car to move it he found the sheriff or some one had taken the car and that the same was in the possession of the sheriff. The testimony fails to show that a demand was made by the witness Fowler on the defendant for a return of the car. The prosecuting witness insists he loaned the car to the defendant. This does not seem reasonable, for the reason that the title had been assigned to the defendant and he went to the tag office and bought a new license tag. The defendant says he bought the car from the prosecuting witness, Fowler, and gave him a cow in payment. The state’s witness admits he received the cow, but claims she was not satisfactory and he turned her out but does not offer any testimony to show what became of the cow. i j#f

The defendant accounts for where the car broke down, and then accounts for the fact that the sheriff went out and pulled the broken down car into town. Nowhere does the state’s witness say he demanded of the defendant that he return the car. There is no testimony in the record showing the defendant had borrowed the car from the state’s witness excepting his testimony. The testimony of the assignment of the title and the length of time the witness Fowler waited before he brought this prosecution, and his failure to demand the return of the car from the defendant, clearly shows that the defendant did not violate any trust imposed in him by the state’s witness, but, on the other hand, that he had purchased the car, taking an assignment of the title to the car, and went to town and bought a license for the car and used it until it broke down.

There is no evidence in the record in any way tending to show the defendant in this case concealed the car or that he did anything that tended to show he was not the owner of the car.

The defendant has assigned five errors alleged to have been committed by the trial court. The only assignment necessary to be considered is assignment 1: “That the verdict returned by the jury in said cause is contrary to the law and is not supported by the evidence.”

There is no question of law in this case. The only question is' a question of fact, and that is, Is there sufficient testimony in the record to sustain the defendant’s conviction on a charge of embezzlement of the car in question?

The defendant and prosecuting witness as brothers-in-law were together and the question of the car came up; the car was valued at $40; and the defendant bought the car from his brother-in-law, and gave him a cow for the $40. The prosecuting witness admits he got the cow but claims he loaned the car to the defendant. The undisputed testimony in the record is the defendant claims he bought the car and drove to town; that the title of the car had been assigned to him and he bought a new license for the car in his name; he went on about his work and business, using the car. The cow was delivered to the state’s witness. The cow was not returned to the defendant, and it was almost two years after he bought this car until the prosecuting witness filed the charge of embezzlement.

The prosecuting witness in his testimony tries to show the county attorney would not institute the prosecution was the reason why it was delayed so long before a complaint was filed. The state’s witness does not give any reason why he did not demand the return of the car from the defendant, and did not talk with him or ask him to return it, even though they met at the funeral of the defendant’s wife.

The record discloses the prosecuting witness became dissatisfied with the cow that had been traded to him for the car and for that reason he wanted to get the car back. He failed to account for what became of the cow.

It does not stand to reason that any one would lend a car to another as contended by the prosecuting witness and never make any request for its return. The evidence, facts, and circumstances surrounding this clearly show there was no criminal intent on the part of the defendant, but that the defendant had received the car, and assignment of title to him, and believed that he owned the car.

There being no competent evidence to sustain a conviction for embezzlement, the judgment of the trial court is reversed.

DOYLE and BAREFOOT, JJ., concur.


author: BAREFOOT, J.

text:
    S. B. PHILLIPS v. STATE.
    No. A-9419.
    March 11, 1938.
    (77 P. 2d 578.)
    C. B. Wood, of Fairview, and Finis 0. Stewart, of Cherokee, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and 0. M. Ginder, Co. Atty., of Cherokee, for the State.
   BAREFOOT, J.

The defendant was charged by information, in Alfalfa county, with the crime of uttering and passing a forged check, was convicted and sentenced to serve a term of one year in the penitentiary, and has appealed.

On November 20, 1937, the Attorney General filed a motion to strike the case-made, in this case for the reason that it revealed that defendant was sentenced on May 20, 1937, and on said date was granted sixty days in which to prepare and serve a case-made; that this time expired on July 19, 1937; that no other order of extension was granted until September 4, 1937, which was after the expiration of the time previously granted, and was, therefore a nullity; that the case-made was served on the county attorney on October 1, 1937. The proof shows that a copy of this motion was mailed to the defendant’s attorney at his proper post office address on the 20th day of November, 1937. Since the case was submitted to this court counsel for defendant has been written calling his attention to this motion and inquiring if the record showed any extension which the case-made did not contain, and that, if so, he procure them and have them certified, and asking him to appear before this court on the 15th day of February, 1938. No response was filed on behalf of the defendant, nor any appearance made. We have carefully examined the record and find that the allegations of the motion filed by the Attorney General are true, and under the authorities it becomes necessary to sustain the motion of the state to dismiss the appeal in this case. Harrison v. State, 54 Okla. Cr. 319, 20 P. 2d 586; Spencer v. State, 48 Okla. Cr. 340, 291 P. 987; Billus v. State, 7 Okla. Cr. 37, 121 P. 790; Watson v. State, 6 Okla. Cr. 624, 117 P. 651; Welch v. State, 38 Okla. Cr. 300, 260 P. 787; Brown v. State, 18 Okla. Cr. 328, 194 P. 272.

This court does not look with favor to the dismissal of appeals by reason of technicalities or irregularities in the proceedings. Section 535, Okla. Stats. 1931, Okla. St. Ann., tit. 12, § 959, p. 354, gives appellate courts the right to return the record to the trial court for the purpose of correcting errors or defects. When this can be done, counsel representing a defendant, or the state, should call the court’s attention to this matter to the end that both the state and the defendant, who has been convicted of a crime and desiring to appeal, may have the same passed upon on its merits. The evidence in this case reveals that defendant forged a check for $242.50 on one Mose Stevenson; that he procured this money from the Central National Bank of Aline, Alfalfa county. The defendant was manager of the Farmer’s National Grain Corporation of Aline, and Mose Stevenson sold the wheat which he raised to this company. Defendant admitted signing the check, but contends that he had the authority to sign the same. This issue was passed upon by the jury and they found against the defendant.

We have examined the record. The information is in proper form; the instructions of the court properly submitted the law of the case; and the evidence was sufficient to sustain the verdict. We do not find any fundamental error was committed in the trial of this case.

For the reasons above stated, the appeal is dismissed.

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


text:
    WARREN BURTT v. STATE.
    No. A-9326.
    March 11, 1938.
    (77 P. 2d 580.)

      Jean R. Reed, of Wagoner, for plaintiff in error.

      Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and E. G. Carroll, Co. Atty., of Stilwell, for the State.
   BAREFOOT, J.

The defendant was charged by information in Adair county with the crime of rape by force, was tried and convicted, and sentenced to serve a term of eight years in the penitentiary, and has appealed.

Defendant, in his brief, sets forth ten assignments of error, but groups them under one heading, contending that:

“Under the laws of this state, when the state in a prosecution of rape relies on the theory of rape by force and fear as in this case, it is essential to conviction that the state show by competent evidence that the utmost force was used and threats made of immediate bodily harm, coupled with apparent power of execution to the prosecutrix. In the case before your honors it was never shown by the state that the prosecutrix was ravished by force and fear or that the defendant made any threats of whatsoever nature toward the prosecutrix.”

It becomes necessary to review the evidence offered in this case. It reveals that the prosecutrix, Melodees Stilwell, and a young girl friend, Beatrice Barker, both of whom resided in Stilwell, Adair county, in company with a crowd of young people, went to a picnic , at the town of Caney on the night of July 4, 1936, on a truck belonging to Monk Paden. They remained at the picnic grounds until about 10:30, and went from there to another picnic at Barron Forks. While at Barron Forks they saw Mr. and Mrs. Ralph Hill, Mrs. Hill being a sister of Beatrice Barker. Both of these witnesses testified to seeing both of the girls at the picnic about 10:30, and that they were at that time in the company of the defendant and Bill Stevens. He testified that he told them who the girls were and that they were just “kids,” and that if they would be good to them he would let them take the girls home as they had requested, otherwise he would take them home himself; that defendant told him they would. The defendant and Bill Stevens were driving a truck which belonged to, and was being operated by, the defendant. Just before leaving the girls, Mr. and Mrs. Hill saw the defendant and Bill Stevens and Melodees Stilwell and Beatrice Barker leave in the truck headed toward the town of Westville. They saw them returning in a few minutes going in the opposite direction. Mr. and Mrs. Hill did not see the girls again until the next morning, when they saw them in the town of Stilwell, their clothes were torn, their eyes were black, and their faces and necks were bruised, and they were beaten up.

Beatrice Barker, a witness for the state, testified to going to the picnic on the truck with prosecutrix, Melodees Stilwell. While there they saw the defendant, whom she knew when she saw him, and Bill Stevens, whom she also knew; that the four of them went in the defendant’s truck to the Barron Fork picnic; that while there they met Mr. and Mrs. Hill, Mrs. Hill being the sister of the witness; that they left the picnic grounds at Barron Fork in defendant’s truck and him driving; that they went around through Arkansas, but did not go through the town of Westville; but turned at the road at the port of entry and came through Evansville, Ark., and back to Stilwell. Defendant was driving, and on the way back he stopped on the side of the road. Melodees asked him why he stopped and he said: “I will show you,” and he pulled her out of the truck. That Bill Stevens told her to get out and she did not. That she was sitting on Bill Stevens’ lap and he pushed her out of the door. Witness said that they got to scuffling and were screaming and hollering. That there was a house close by and Melodees said something about it. That they told the girls to get back in the truck and they would take them home. They all got in the truck and went down the road a little further, when defendant- stopped the truck again. After some argument about getting out of the truck, defendant got out and pulled Mélodees Stilwell out of the truck, then Bill Stevens started pulling witness out of the truck. After fighting and hollering and trying to keep them away from her, she testified that prosecutrix was scuffling and hollering and was trying to get away from defendant and trying to get back in the truck. That they finally got loose and went up the road, and the boys caught up with them and jumped out and caught them and dragged them into the truck. Witness testified she fainted, and when she came to Bill Stevens had pulled her into the ditch on the right side of the road, and that Melodees was fighting, crying, and screaming. Then witness related that she was overcome and fainted. That after she was overcome Bill Stevens had dragged her into the ditch. That he accomplished an act of sexual intercourse with her. Finally she got up and they got back to the truck. That he held her and made her go to the truck, and that they went back to Stilwell in the truck. That as she got back to the truck prosecutrix and defendant were coming from the other side of the road and he was holding her and making her walk along, and she heard Melodeesi say: “Why don’t you let me loose, you’ve done enough already.” She said she told them: “Let us loose and we will walk on back,” and they said, “No, you won’t.” Witness stated that they got in the truck and went to Stilwell and were let out down where the railroad crosses the road by the Holiness church. Witness stated: “When we got out we went over to her house,” and defendant asked prosecutrix if she was going to have him arrested and she said, “Yes,” and he said, “I don’t guess you will, you are going with me.” Just as soon as they got in the house they reported to the folks what had happened to them. She testified to examining their clothing and found that prosecutrix’ clothing were torn, dirty, and had blood on them.

Melodees Stilwell, the prosecutrix, as a witness for the state, testified that she was 17 years of age on the 22d day of November, 1935. She corroborated in detail the evidence of Beatrice Barker with reference to going to the picnic on July 4, 1936, and being in company with defendant and Bill Stevens. She said when defendant stopped the truck she asked him what was the big idea and he just laughed and told her to get out. He kept trying to get her to get out of the truck, but she told him she was not going to get out. He said she was and pulled her out. That she fought and screamed. That she heard Beatrice Barker scream and heard her say: “Oh, I feel like I am going to faint.” That defendant dragged her off to the side of the road and threw her down. When he threw her down, she reached out and got a big rock and hit him on the forehead, and that defendant took the rock away from her and finally, after overcoming her, had sexual intercourse with her. She testified that all the time she was hollering, screaming, and fighting with her fists and the rock which she had. She had bruised places on her shoulder, and her lips were bleeding, and her dress was torn and bloody. After accomplishing the act of intercourse, “he turned me loose and then grabbed me and drug me to the truck and told me to get in.” “I did not want to. He picked me up and put me in the truck.” She testified that it was not daylight, but was about 4:30 a. m. when she arrived at her home. She went into the house and immediately told her mother what had happened and asked her to get Mr. Nicholson, the sheriff, who lived across the street north of them. Mr. Nicholson was not at home, but Mrs. Nicholson, his wife, came over. Dr. Church came over and gave them some medicine.

Fannie Hughes, the mother of Beatrice Barker, testified as to her going to the picnic and of seeing her about 4 a. m. on the morning of the 5th of July at the Stilwell home; that she was beaten and bruised on her legs and body; that prosecutrix had her face scratched up and had blood on her nose; that her dress and her underwear were torn.

Mr. and Mrs. Charlie Stilwell, the mother and father of prosecutrix, both testified to the girl’s returning home at 4 o’clock in the morning and immediately asking the mother to call the sheriff; that she told them what had happened; that their daughter was bleeding on the face and had a knot under her ear, and that she thought one of her arms was broken; that she was black and blue all over; that her dress and underclothing were torn and bloody.

Several other witnesses testified to seeing prosecutrix at her home on the morning of the 5th of July, and that she was bruised on her face and body.

The officers who arrested defendant on the morning of the 5th of July testified that his face was bruised and looked as though he had been hit with some blunt instrument.

Numerous witnesses testified that they lived near the road where the evidence showed the truck had passed on the night of the 4th of July, and that during the night, and at about the time testified to by prosecutrix and Beatrice Barker, that they were awakened by loud hollering and screaming of some woman who seemed to be in distress; that they got up and went to the door and plainly heard the hollering and screaming and heard the voices of both men and women; that they did not go to the place, for the reason that they thought it was some one on the road drunk.

The defendant testified in his own behalf. The statement of his testimony given in the brief of the state reveals his testimony in a fair and impartial manner. He testified that he lived in Wagoner, Okla., that he was 24 years old and lived at Wagoner for 15 or 16 years; that on the 4th of July he was in Adair county hauling hay, grain, anything he could get to sell; that he came there to bring a load of hay; that after he unloaded his hay he came back by the port of entry and drove up to town for a few minutes, stopped there because he traded some there, and met Bill Stevens. He knew Bill, and they had stayed together and had been friends, and after a while Beatrice Barker and some other girls he didn’t know came to where he was; he stated that Beatrice asked him to take her and the girls to the picnic and he told her he was going out that way in a few minutes because he was on his way home to Wagoner. Two boys came down there. Bill came back and the five of them went in the truck to the picnic, two girls in the seat with this defendant and Bill, and the two boys were riding behind. Defendant thought it was around 9 o’clock, and, after staying around the picnic awhile, Bill Stevens brought Melodees Stilwell back up to the truck and they stayed there 30 or 40 minutes, and Bill Stevens got in the truck and sat down for awhile. The girls were back on the picnic ground. They came back and wanted to know if the defendant was going to the Barron picnic. He advised them that he was going back to Evansville after awhile. He went back by Westville. He didn’t intend to go that way. The girls got in the truck, the two of them, Beatrice Barker and Melodees Stilwell. Bill Stevens got in the truck in the seat by the defendant. The four of them were in the front seat. They went to the Barron picnic. Bill Stevens had some whisky. The girls were riding on the laps of the boys— Beatrice Barker on Bill’s lap. They drank some whisky, the four of them. Bill and his girl got out and went off down the side! of the road and this defendant and Melodees got on the other side of the car. They walked off down the road a ways and he had intercourse with his girl and he and Melodees came back to the truck. Bill hadn’t come back yet, and he blew the horn a few times, and directly Bill and his girl came and got in the truck and they all went back to Barron. They went back to the picnic ground and he judged it was around 11:30. They didn’t stay there but a few minutes and went to Westville, through the port of entry (the port of entry is 2 miles east of Westville). They got to the port of entry about 1 o’clock. They went from there to Lincoln, Ark., to get some whisky. They bought a pint of whisky and a pint of orange gin and were all drinking; the girls drank also. They left Lincoln, Ark., around 2 or 2:30 and came back and went on toward Stilwell and turned this side of Stilwell, and when they turned and stopped about three miles out of Evansville they came around a big sweeping curve where the road makes a curve around a schoolhouse. They stopped and got out of the truck and went off in the sticks. Bill and his girl went west up the road and this defendant and his girl went east. In answer to being asked, “What did you do?” defendant answered, “What most young people do when they go out.” After that they got in the truck and started toward Stilwell and stayed on the road. A little pig ran across the road and they threw on the brakes to keep from running over it and it caused Melodees to get her nose mashed a little and Beatrice to get her eye blacked. That was all. He stated that there wasn’t any screaming. They arrived in town around 2:30- or 3 o’clock. They let the girls out and started home — Bill Stevens was with him. They didn’t stop any more. The next morning he was on the north side of the Severs Hotel at Muskogee, about 6:30, and he got knocked in the head at Muskogee, he didn’t know who it was and he didn’t know where Bill Stevens went. He didn’t know who hit him. He didn’t see Bill Stevens any more after this defendant was hit and robbed. When he awakened, he went to Wagoner, Okla., and found out the first thing when he awakened that he had been robbed. He went to Westville and figured Bill Stevens was there and had gotten his money. He figured he would get it back. He had a load of hay and Doe Clark-son was with him and he met Grover Alberty and C. J. Atchley — “That is, they overtaken me.” Then he related positively that Melodees Stilwell gave her consent to these two acts of intercourse. He further stated that he never, at any time, used any violence; that she was perfectly willing. He then related on cross-examination that he was a married man and had been married four years and had one child, 9 months old; that he came to Stilwell on the 4th of July in the afternoon, late. He unloaded his hay about sundown. He didn’t know whether he got to Stilwell at 10 o’clock or 2 o’clock, but he was not drinking.

On rebuttal the state offered three witnesses, Ira Fields, Jewell Fullerton, and Mrs. Tom Paden, all of whom testified that they knew Melodees Stilwell and Beatrice Barker, and that they went to the Caney picnic on the 4th of July on a truck driven by Monk Paden, and that neither Warren Burtt nor Bill Stevens was on the truck.

The state also offered seven witnesses who testified that they saw prosecutrix, Melodees Stilwell, on the morning of the 5th of July and were in close touch with her and that they did not detect any liquor upon her breath. Two of these witnesses were the mothers of prosecutrix and Beatrice Barker. The defendant offered several witnesses who testified she had the appearance of having been drinking. Several witnesses also testified that they had on different occasions seen prosecutrix in company with certain parties, and had seen them hugging and kissing her. One of these was a former sweetheart who had married. None testified to improper relations. Other testimony was offered which is not necessary to give in the consideration of this case.

The information filed in this case charged the defendant with “unlawfully, wrongfully, intentionally, and felo-niously, and by force and putting in fear, rape, ravish, and carnally know one Melodees Stilwell, and have sexual intercourse with the said Melodees Stilwelll, and the said Mel-odees Stilwell, being then and there not the wife of the said Warren Burtt, contrary to the form of the statute,” etc. No motion or demurrer was filed attacking the sufficiency of the information. The information charged the defendant with an offense of rape in the first degree. The court, in charging the jury, instructed them that if they found and believed from the evidence beyond a reasonable doubt that the defendant was over 18 years of age, and that prose-cutrix was over the age of 16 years and under the age of 18 years and of previous chaste and virtuous character, and that she was not the wife of defendant, that they should find defendant guilty of rape in the second degree, but that, if they had any reasonable doubt as to any of the above elements, they should acquit him. The court also defined what it took to constitute “chaste and virtuous character” in accordance with the decisions of this court. No exceptions were taken by defendant to either of these instructions. The jury found the defendant guilty of rape in the second degree, and left the punishment to the court. The court sentenced him to a term of eight years in the penitentiary. Under the evidence as heretofore outlined the jury could have found the defendant guilty of rape in the first degree, and, under the testimony, and authorities, this court would have sustained the judgment and sentence. But the jury saw fit to find the defendant guilty of rape in the second degree. This court has held in the case of Hinson v. State, 29 Okla. Cr. 210, 232 P. 955, 957, that where a defendant was charged by information with the crime of rape by force, and is convicted of rape in the second degree, he cannot complain that the court charged the jury with reference to the law of rape in the second degree, and where no exception or objection was taken to this part of the charge in the court below. The court says:

“Sections 2694, 2739, and 2740, Comp. Stats. 1921, [Okla. Stat. 1931, §§ 3091, 3096, and 3097, 22 Okla. St. Ann. §§ 837, 915, 916] in substance, provide that a defendant may be convicted of the offense charged, or of any lesser degree thereof, or of any offense necessarily included within the charge.
“This court is firmly committed to the rule that, if the evidence demands a conviction of a higher degree of the offense charged than that for which he was convicted, and does not warrant an acquittal, the defendant is not entitled to a new trial on the ground that, under instructions so permitting, the jury found him guilty of a lower degree.”

Also, in Hunter v. State, 6 Okla. Cr. 446, 119 P. 445, it was held:

“If error has been committed by the conviction of a defendant for statutory rape in the second degree, when under the evidence he should have been convicted of statutory rape in the first degree, the defendant cannot be heard to complain because the error was clearly to his advantage. The law never considers a question of error except in behalf of those who are injured thereby.”

See, also, Penn v. State, 13 Okla. Cr. 367, 164 P. 992, L.R.A. 1917E, 668; Steward v. State, 9 Okla. Cr. 327, 131 P. 725; Wilmoth v. State, 20 Okla. Cr. 453, 203 P. 1055, 21 A.L.R. 590; Lytton v. State, 12 Okla. Cr. 204, 153 P. 620; and Irby v. State, 18 Okla. Cr. 671, 197 P. 526.

It is strongly urged by defendant in his brief that the law of this state is that in a case of rape that “there must be the utmost of force and the utmost of resistance,” and cites the cases of Sowers v. Territory, 6 Okla. 436, 50 P. 257, and Parker v. Territory, 9 Okla. 109, 59 P. 9. It will be noted that these cases were decided by the territorial court prior to statehood. In so far as they adhere to the old doctrine with its strict construction that “there must be the utmost of force and the utmost of resistance,” they have not been followed by this court since statehood, and are not in harmony with the true rule as now followed by the more modern decisions. In the case of Bulls v. State, 33 Okla. Cr. 64, 241 P. 605, 606, this court, speaking through Judge Doyle, says:

“The old rule of ‘resistance to the uttermost’ is obsolete, and is repudiated by the more modern authorities. The law does not require that the woman shall do more than her age, strength, the surrounding facts, and all attending circumstances make it reasonable for her to do in order to manifest her opposition. In reference to the degree of resistance required, the jury should be instructed that it is necessary, not that the prosecutrix should have made the uttermost resistance, but that she has made such resistance as she was capable of making at the time. See 33 Cyc. 1506, and cases cited.”

And in Snider v. State, 40 Okla. Cr. 214, 267 P. 687, the court says:

“In this state to constitute rape by force it is not essential that resistance be to the utmost, but need be only such as to make nonconsent and actual resistance reasonably manifest.”

In Sherrill v. State, 47 Okla. Cr. 275, 287 P. 747, 748, Judge Davenport, speaking for the court, says:

“To support a charge of rape, female’s resistance need only to be such as to make nonconsent and actual resistance reasonably manifest, having regard for her age, strength, and surrounding circumstances.”

This rule is in harmony with the more modern decisions. 52 C. J. pp. 1019 and 1020, says:

“Although there is authority that there must be the utmost reluctance and the utmost resistance, the rule of ‘resistance to the uttermost’ has been expressly repudiated; and even where the term ‘utmost resistance’ is still employed, it is held to be a relative term, which actually means the greatest effort of which the woman is capable to foil the assailant and preserve the sanctity of her person. Too, it has been stated that the requirement that the act be without the female’s consent or against her will signifies that it be committed against the utmost reluctance and against the utmost resistance which she is capable of making, and that the female’s opposition of the man to the utmost limit of her power is the test of resistance. Thus the prevailing rule is that there must be the most vehement exercise of every physical means or faculty within the female’s power to resist penetration, and a persistence in such resistance until the offense is consummated. The female need not resist as long as either strength endures or consciousness continues. Rather the resistance must be proportioned to the outrage; and the amount of resistance required necessarily depends on the circumstances, such as the relative strength of the parties, the age and condition of the female, the uselessness of resistance, and the degree of force manifested, which rule is in some jurisdictions expressly adopted by statute. Stated in another way, the resistance of the female to support a charge of rape need only be such as to make nonconsent and actual resistance reasonably manifest. The female need resist only until physical penetration occurs, when the crime is complete, and her failure to resist after that is immaterial; and she need resist only until resistance becomes so useless as to warrant its cessation. Further, the resistance must be in good faith and not a mere pretense, or, as stated otherwise, it must be real or genuine and active, and not feigned, or passive, or perfunctory.”

In the case of Watson v. Taylor, 35 Okla. 768, 131 P. 922, 924, the Supreme Court of this state gives a very full discussion of this question and gives in an elaborate manner the reason for the rule above announced. The court says:

“It is not often that such an assault is or can be described by a female with that complete fullness of detail with respect to every word spoken or every fact and circumstance that may enter into the questions of consent or resistance. When the proof is given, as it sometimes is, in general terms, the jury must still be satisfied that there was no consent, and that resistance was made to the extent of the woman’s ability. What that ability was must in many cases depend not only upon her strength and power to defend herself or make herself heard, but also upon the element of fear, when it exists. The age, strength, and physical appearance of the parties, with the manner in which they testify, are elements of some importance which the jury may consider with all the other facts. The relation which the parties bear to each other, as in this case, may also be considered. Where on one side we find extreme youth, inexperience, and dependence united with the principle of fear and obedience, and, on the other, mature age, great physical power, and dominating influence and control over the movements and will of another, the question of consent and resistance must be determined with reference to those conditions.
“When such a case arises, who is to determine when, as in this case, the girl, in stating the occurrence, states that she did not consent and did resist to the best of her ability, whether she tells the truth or not? Can this court, after the jury have accepted the plaintiff’s version of the transaction and the General Term has approved the verdict, say, as matter of law, that there was no evidence for the consideration of the jury? This, I think, would be to transcend the limits of our jurisdiction as a court of law, without power to review disputed facts. * * *
“Moreover, our statute provides (section 2353, Comp. Laws, 1909 [Okla. Stats. 1931, § 2515, Okla. St. Ann. tit. 21, § 1111, p. 464]) that all that is required to constitute the crime of rape is an ‘act of sexual intercourse accomplished with a female, not the wife of the perpetrator * * * where the female is over the age of 16 years and under the age of 18, and of previous chaste and virtuous character.’ The language of the statute is clear and unambiguous. It clearly eliminates the elements of consent and resistance from the case of an assault upon the class of females therein described. Its manifest purpose is to throw a protecting mantle about the female children of this state within certain ages, which the hand of the libertine may not withdraw except at his peril. The statute in effect says that chastity is such a precious jewel in the crown of maidenly graces, that it cannot be stolen or removed therefrom even with the consent of the wearer, without offending the majesty of the law.”

The facts in the case at bar are in a great many respects similar to the authorities cited above and the argument there stated applies here. The evidence of the prosecutrix and her girl friend, Beatrice Barker, reveals that she made the greatest effort of which she was capable, and with the faculties which she had to foil her assailant and preserve the sanctity of her person. She was a young girl, 17 years of age. The defendant was a grown married man, 29 years of age. He was the father of a child, nine months old. His desire for lust led him to seek out this young girl and take her from her friends and loved ones with the thought always in mind of securing her debauchery. At the first opportunity he stopped his truck and demanded that she get out that he might accomplish his purpose. She refused, and he pulled her out, not only once but at several different times. She screamed and fought and hit the defendant on the head with a rock which she secured. When defendant was arrested the next day, his face bore this mark. His statement that he had been robbed and slugged in Muskogee was probably not given much weight by the jury, and was about as unreasonable as his story that his truck was about to hit a little pig running across the road on the night of July 4th, and that the girls received their injuries in this way. The evidence, in so far as resistance is concerned, would have brought it within the rule of “uttermost resistance,” certainly it was within the rule that she did as much as her age, strength, and surrounding circumstances made it reasonable for her to do. The defendant testified that prosecutrix and her girl friend had accompanied him and Bill Stevens to the Caney picnic in his truck. This testimony is contrary to every witness placed upon the stand, and even by witnesses offered by the defendant himself. The prosecutrix, at the very minute she returned to her home, informed her parents of the outrage that had been perpetrated upon her, and requested her mother to call the sheriff of the county, who lived in close proximity. Her clothes were torn and bloody; her body was bleeding and bruised; and every physical fact corroborated her story that she had resisted to the “uttermost,” and certainly “with all the strength that her age and the attending circumstances made it reasonably possible for her to do.”

With reference to the contention that the state did not prove that prosecutrix was of chaste and virtuous character, this question was presented to the jury by the court. Under all the facts and circumstances in this case, the undisputed evidence showed that she was only 17 years of age. The evidence offered by defendant showed no act of intercourse by her with any one except the defendant; that she was in company with a party who had been her sweetheart prior to his marriage and was hugged and kissed by him, and especially during the time that he was separated from his wife, is not evidence of illicit relations between them. Most of the witnesses offered by defendant to give circumstances with reference to her company with others were impeached by officers and other witnesses who testified in this case. The jury heard and saw the witnesses and they accepted the state’s theory of the case and found the defendant guilty. It is not the province of this court, as a matter of law, to say that they were wrong in their conclusion. As a matter of! fact, the evidence here shows that this court would have been warranted in affirming this verdict if the defendant had been found guilty of rape in the first degree. Under these circumstances, as above indicated, he will not be heard to complain that the jury in its leniency gave him a lesser punishment by only finding him guilty of rape in the second degree.

The contention of counsel that section 3108, Okla. Stats. 1931, Okla. St. Ann. tit. 22 § 927, p. 204, is unconstitutional because the jury found the defendant guilty of the crime of rape and left his punishment to be fixed by the court, and that therefore he was deprived of his right to trial by jury, is untenable. No authorities are cited to sustain this contention, and we do not think any could be had.

The statement of the county attorney, in his closing argument, is not such that would have influenced the minds of the jury and require a reversal thereof. The record does not show that an exception was taken by the defendant to this statement as required under the law of this state.

For the reasons above stated, the judgment of the district court of Adair county is affirmed.

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