author: MATSON, J.

text:
    TOM UNDERWOOD v. STATE.
    No. A-3352.
    Opinion Filed May 16, 1922.
    Rehearing Denied March 12, 1923.
    (212 Pac. 1010.)
    (Syllabus.)
    1. Appeal and Error — Assignments Unsupported by Record not Reviewed, Assignments of error, not supported by the record, will not be reviewed on appeal.
    2. Indictment and Information — Lairceny—Sufficiency of Allegation Negativing Owner's Consent — Meaning of “Steal.” The word “steal” has a uniform signification in common as well as legal parlance; it means the felonious taking and carrying away of the personal goods of another; it means to take without right, secretly, and without leave or consent of the owner. In the speciál larceny of live stock statute making it a> felony to “steal” certain live stock, there feeing no language in the act to indicate that the Legislature intended to place a different- meaning upon the word “steal” than that given to it in its ordinary and legal sense, an information, charging certain live stock to have been taken “feloniously and by stealth,” with the further allegations that the taking was with “felonious intent to permanently deprive the owner thereof and to , appropriate the property to the use of the taker,” there is a sufficient negation of the owner’s consent to the taking. The cases of Beck v. State, 14 Okla. Cr. 3, 166 Pac. 753, and Tates v. State, 14 Okla. Cr. 10, 166 Pac. 904, in so far as in conflict herewith, are expressly overruled; the decision in Crowell v. State, 6 Okla. Cr. 148, 117 Pac. 883, is followed.
    3. Trial — Issues .Covered by Instruotion.on Reasonable Doubt Where Defense Merely Negation of Guilt. The defendant is entitled to an affirmative instruction covering the defense interposed, when requested. Where the defense amounts . merely to a negation of guilt, and the trial court instructs fully upon the necessity to prove guilt beyond a reasonable doubt as against the presu/mption of innocence, instruction will ordinarily be held to be sufficient to cover the issues.
    Appeal from District Court, Delaware County; John H. Pitchford, Judge.
    Tom Underwood was convicted of stealing two steers, and he appeals.
    Affirmed.
    Ira A. Miller, J. W. Miller, and S. F. Parks, for plaintiff in error,-
    The Attorney General, for the State.
   MATSON, J.

This is an appeal from the district court of Delaware county wherein the plaintiff in error, Tom Underwood, hereafter referred to as defendant, was convicted of stealing two steers, the property of one George Franklin, and sentenced to serve a term of two years in the state penitentiary. From the judgment rendered against him he has appealed to this court, and assigns several errors, which will be considered in the order presented in the brief. '

It is first contended that Gf. W. Goad, who filed the information in the trial court as county attorney of Delaware county, was not the duly elected and qualified county attorney of that county, and had no authority to present' an information to said court charging a criminal offense. "We find nothing in the record to support .the motion to set aside the information on this ground. Assignments of error not supported by the record will not be reviewed on appeal. Fain v. State, 14 Okla. Cr. 556, 174 Pac. 296; Keeter v. State, 15 Okla. Cr. 139, 175 Pac. 263.

It is also contended that the trial court erred in overruling the demurrer to the information. The demurrer was on the ground that the information did not show that a public offense had been committed.

The charging part of the information is as follows:

“That Tom Underwood did, in Delaware county and in the state of Oklahoma, on or about the 10th day of July, 1915, * * * willfully, unlawfully, feloniously, and by fraud and stealth take certain personal property, to wit, one red yearling past steer, valued at $25, and one red yearling past steer with white on face, valued at $25, both branded with a ‘U Bar’ on hip, said steers being taken in one transaction and at the same time, from the possession and control of George Franklin, the owner of said property so taken, with the felonious intent in him, the said Tom Underwood, to permanently deprive the said owner thereof and to appropriate the same to the use of him, the said Tom Underwood, contrary,” etc.

It is contended that the foregoing information is fatally defective for the reason that it fails to allege that the property stolen was taken “without the consent of the owner,” and in support of this contention the cases of Beck v. State, 14 Okla. Cr. 3, 166 Pac. 753, and Yates v. State, 14 Okla. Cr. 10, 166 Pac. 904, are in point. If the Beck and Yates Cases are to be followed, the information in the instant case is fatally defective. Upon more mature reflection this court is of the opinion that the decision in the eases of Beck v. State and Yates v. State, supra, were not well considered, and are contrary to previous holdings of this court, where the identical question was involved, and for such reasons, where said cases are in conflict with the opinion in this case, they are expressly overruled.

The statute on which this prosecution is based reads as follows:

“Any person in this state who shall steal any * # * cow or hog shall be guilty of a felony and upon conviction shall be punished by confinement in the penitentiary for a term of not less than” two years “nor more than ten years. * * * The word ‘cow,’ ” as used in this act, “shall include all animals of the bovine species.” Rev. Laws 1910, § 2667.

The act is similar in its provisions to the larceny of domestic animals act construed by the Territorial Supreme Court in Hughes v. Territory, 8 Okla. 28, 56 Pac. 708, and by this court in Crowell v. State, 6 Okla. Cr. 148, 117 Pac. 883, in both of which cases it was held' that the word “steal” as used in the act is employed in its common-law sense, and is not synonymous with the-term “larceny,” as defined by the Oklahoma statutes; that while larceny and stealing, at common law, were synonymous terms, our statute has given to the word “larceny” a much broader meaning than it had at common law, while the word “steal” or “stealing” has received no definition by our statutes, and must therefore be construed according to its common-law meaning. Therefore it is necessary for the court to look to the common law to ascertain the nature and limits of the special felony commonly known as the larceny of live stock statute. The- word “steal” has a uniform signification in common as well as legal parlance; it means the felonious taking and carrying away of the personal goods of another; it means to take without right, secretly, and without leave or consent of the owner. Baldwin v. State, 46 Fla. 115, 35 South. 220; State v. Minnick, 54 Or. 86, 102 Pac. 605; State v. Perry, 94 Ark. 215, 126 S. W. 717; Hughes v. Territory, supra; Crowell v. State, supra.

In the latter case an information, the charging part of which was practically identical with the information in the instant case, was held sufficient to charge an offense under a special larceny of live stock statute which made it a felony to “steal” certain live stock. In the statute here under consideration the Legislature has merely employed the word “steal” to define the offense. There is no further language in the act to indicate that it was intended to place a different meaning upon that word than that given to it in its ordinary and legal sense. The information in the instant ease charges the property to have been taken “feloniously and by stealth,” and then follows additional allegations that the taking was with “felonious intent to permanently deprive the owner thereof and to appropriate the property to the use of the taker.” Upon more mature consideration the court is of the opinion that the allegation that the taking was “felonious and by stealth” is sufficient to charge that the taking was “without the consent of the owner,” and that the cases of Beck v. State and Yates v. State, supra, holding similar informations defective because the additional allegation “without the consent of the owner” was not contained therein, are against the weight of authority and contrary to the earlier decisions of both the Territorial Supreme Court and of this court, and should be overruled. In this connection it is not to be understood that it is unnecessary for the state (in proving the felony defined by the statute here under consideration) to prove a taking without the consent of the owner, but it is merely held that, where the information alleges a “felonious taking by stealth with the felonious intent to permanently deprive the owner! of the property and to appropriate the same to the taker’s use,” there is a sufficient negation of the owner’s consent to the taking, contained in the information. For such reasons we hold that the trial court did not err in overruling the demurrer to the information. ■

It is next contended that the trial court erred in refusing to give certain instructions and in giving a certain instruction, all over the objection and exception of the defendant. We have examined the instructions refused and the instruction given, and have considered the same in connection with the issues as disclosed by the evidence, and are of opinion that the defendant was not prejudiced by the trial court’s action in these respects.

While it has been held by this court that, when requested, the defendant is entitled to an affirmative instruction covering the defense interposed, and it would be reversible error to refuse such instruction when requested, yet in this case the defense interposed was not in its nature affirmative, but amounted merely to a negation of guilt, and for that reason we are of the opinion that the trial court’s instructions, requiring the state to prove guilt beyond a reasonable doubt as against the presumption of innocence, were sufficient.

For the reasons stated, the judgment is affirmed'.

DOYLE, P. J., and BESSEY, J., concur.


source: Caselaw Access Project

author: BESSEY, J.

license: Public Domain

text:
    GEORGE H. HUNTER v. STATE.
    No. A-3964.
    Opinion Filed Nov. 25, 1922.
    Rehearing Denied March 12, 1923.
    (212 Pac. 1014.)
    (Syllabus.)
    1. Continuance — Discretion of Court — Continuance to Procure Testimony. Where an application for a continuance is predicated upon the inability to procure certain testimony, and where the showing made indicates that it is exceedingly improbable that such testimony could be procured later, it is within the sound discretion of the court to deny the application.
    2. Same — Denial Where Lack of Diligence. Held, under the circumstances here, no sufficient diligence or effort was made to procure the desired evidence.
    3. Same — Denial of Continuance to Obtain Merely Cumulative Evidence. As a general rule, a continuance should not be granted to obtain evidence which is merely cumulative.
    4. Same — Continuance Properly Denied for Defendant’s Attorneys to Prepare for Trial. Under the showing made and from the facts appearing in the record, held, that the court committed no error in refusing a continuance on the ground that defendant’s attorneys were unable to prepare for trial.
    5. Evidencie — Sufficient .Corroboration of Admitted Accomplice. Evidence corroborating that of an admitted accomplice held sufficient.
    6. Trial — Evidence of Other Thefts Properly Restricted by Instructions. The effect of evidence of other thefts tending to show a general conspiracy to steal cattle was properly restricted by the court’s instructions as outlined in the opinion.
    Appeal from District Court, Ellis County; T. P. Clay, Judge.
    George H. Hunter was convicted of larceny of domestic animals, and lie appeals.
    Affirmed.
    C. B. Leedy and W. A. Briggs, for plaintiff in error.
    Geo. P. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

This is an appeal from a judgment of the ■district court of Ellis county, Okla., finding the plaintiff in error guilty of larceny of domestic animals and fixing his punishment at confinement in the state penitentiary for a term of five years.

The record discloses that the plaintiff in error established a cattle ranch in Ellis county about the year 1917, where he has lived since that time; that on or about the 13th day of November, 1919, George Howlett, a neighboring ranchman, lost from his herd a certain mottled face, red cow or calf, which he was never able to locate or find; that some time in the summer of 1920 L. B. Akins, who had been in the employ of the plaintiff in error during the fall and winter of 1919, was arrested for the larceny of certain personal property and confessed to the sheriff and an inspector of the Texas Cattle Raisers’ Association by the name of Gatewood that he (Akins), pursuant to a previous agreement with Hunter, stole the How-lett heifer, and that he and Hunter and Sheldon butchered the animal in Hunter’s harness house at his ranch on or about the 13th of November, 1919, and that the meat thereof was consumed by Hunter and1 his hired hands at Hunter’s home. It was shown that- when the calf was butchered Sheldon, a young man in the employ of Hunter, dug a hole about four feet deep near a shed in the cow lot, and that he and Hunter buried the hide and head of the animal in this hole. This accomplice, Akins, also testified that pursuant to this agreement with defendant they had stolen other cattle prior to this time.

After having obtained this confession from Akins, the sheriff, Gatewood, and others went to Hunter’s ranch and undertook to locate the place where these parts of the stolen animal were buried. They failed to find them and' sent back to the county jail and had Akins brought out to the ranch, where he pointed out to them the place where the parts of the animal were buried. Upon digging down 4 or 4 1-2 feet, the hide and head of the heifer were found and were identified by Howlett as being the hide and head of the animal lost by him.

At the trial of the case L. B. Akins testified that he stole the animal and put it into defendant’s corral, and that before daylight it was butchered by himself, Sheldon, and Hunter. Sheldon testified that he assisted in butchering the animal in question and told of the disposition of the carcass. He testified further that he did not know that the animal was stolen until he saw the Howlett brand, and that he had nothing to do with, the theft, only helping to butcher the animal and bury the hide and head. Mrs. Velva Akins, who was at the time she testified the wife of L. B. Akins, but whose name was Heidbrier at ’ the time of the alleged stealing, testified that she was cooking for Hunter at the ranch at the time of the alleged stealing, and that the alleged stealing took place within a few days after the celebration of Armistice Day; that they had had tno beef for supper the night before, but did have fresh beef for breakfast; and that some time during the day —she thought probably at noon — she went into what ■ they called the bunkhouse, and there found four quarters of an animal that had been recently killed.

The state introduced 15 witnesses in chief and the defendant 25; the state introduced 9 witnesses in rebuttal; and the record of the trial comprises 566 typewritten pages.

The plaintiff in error in his¡ petition in error brings 24 assignments, which he condenses into 4 propositions in his brief before this court.

Proposition 1 discussed by counsel for plaintiff in error in his brief applied wholly to the court’s action in overruling a motion for continuance, which motion was based upon the affidavit of the plaintiff in error, setting forth the fact that certain witnesses were absent, and also setting out in detail the testimony expected to be obtained from these witnesses. The motion for a continuance, briefly stated, was to the effect that one Frank Drew, of Portland, Or., was at "Woodward, Okla., in the month of April, 1920; that he met L. B. Akins there and inquired for work, and was referred to the plaintiff in error, Hunter; that Akins proposed that if he obtained employment there they could make beer on the side; Drew said that he did not want to do this because of the danger of being prosecuted, when Akins assured him that they would be safe; that he (Akins) and a pal had butchered a heifer when Hunter was away from home and had hidden the hide and head on his premises; that if they should get into trouble Akins would inform Hunter of the hidden head and hide, and their presence would cause suspicion to rest on Hunter; and that by this means they could cause Hunter to aid and protect them, and, if necessary, give them money to leave the country; that Drew refused to enter into this proposed arrangement and left the state of Oklahoma.

The application for a continuance states further that the defendant desired the testimony of “the proprietors of the Moody Hotel and the proprietors of the rooming houses at Canadian, Tex.,-for the purpose of establishing that Velva Akins,” wife of L. B. Akins, was in Canadian, Tex., from November 15 to November 19, 1919, and therefore could not have been on the Hunter ranch during that time.

The application also set out that Ed A- Hitchcock and R. W. Hitchcock, both old acquaintances of plaintiff in error, living at Wellington, Kan., would testify if present that they visited the Hunter ranch on the 20th day of November, 1919, find that they saw a carcass of a freshly butchered animal hanging on the windmill derrick, and that there was no fresh beef hanging in the bunkhouse, as was testified by some of the witnesses for the state. No attempt was made prior to this time to- procure any of these witnesses. To procure depositions in a criminal case, the provisions of section 6040, K. L. 1910, apply:

"If the court or the judge to whom the application is made, is satisfied of the truth of the facts stated and that the examination of the witness is necessary to the attainment of justice, an order must be made that a commission be issued to take his testimony, and the court or judge may insert in the order a direction that the trial be- stayed for a specified time reasonably sufficient for the execution of the. commission and return thereof, or the case may be continued. ’ ’

The defendant had no right to assume that the court, on the showing made, would be satisfied of the truth of the facts stated and that the taking of depositions was essential to mete out justice. Under such circumstances, the right to take depositions and the right to a continuance rest in the sound discretion of the court. Either of these rights may be waived by a failure to assert them seasonably.

The expected testimony of the absent witnesses, as set out in the affidavit, shows clearly that it would be merely cumulative evidence and could be used only for the purpose of impeaching the testimony of certain witnesses whom the plaintiff in error expected the state to introduce in its behalf on trial of the ease. The application indicates that the witness Frank Drew, the one whose testimony would appear to be most important, was a "floater” with no definite fixed residence — his residence being given as General Delivery, Portland, Or., — and upon the showing made it appeared doubtful if the testimony of this witness could ever be procured. The affidavit also fails to disclose what diligence, if any, was used by plaintiff in error to procure the attendance of the absent witnesses. The only excuse offered for the absence of the witnesses referred to being that plaintiff in error’s counsel had been busy in court and that he was led to believe that this case would not be tried at that term, of court.

. The record discloses that plaintiff in error was charged with this crime by information filed in the justice court on August 16, 1920. Within a few days thereafter, a hearing was had, upon which he was bound over to the district court. From the testimony produced at that hearing plaintiff in error anticipated the testimony of the state’s witnesses that would be produced upon the final trial of the ease, and upon that anticipation he seems to have worded his affidavit in support of his motion for continuance. Can it be said that when a defendant has had from August 16th to October 11th to obtain the necessary testimony in support of his defense, and has in the meantime made no effort to do so, he has exercised due diligence? This court has held in the cases of Bethel v. State, 8 Okla. Cr. 61, 126 Pac. 698, Howland v. Territory, 13 Okla. 575, 76 Pac. 143, and numerous other cases, that—

“A motion for continuance which does not show due diligence upon the part of the. person interposing it to have the absent witnesses present should be overruled.”

And in Davis v. State, 10 Okla. Cr. 169, 135 Pac. 438:

“A defendant should not” sit still and “wait until just before his trial before he begins to get ready for trial, but must exercise” due “diligence in procuring process for his witnesses.”

As to evidence sought to be obtained from absent witnesses which is in its nature merely cumulative, as was the case here, the court has announced the following rule:

“As a general rule, a continuance should not be granted to enable a defendant to obtain cumulative evidence.” Ditch-, field v. State, 8 Okla. Cr. 164, 126 Pac. 707, 45 L. R. A. (N. S.) 153; Jones v. State, 8 Okla. Cr. 576, 129 Pac. 446; Rose v. State, 8 Okla. Cr. 294, 127 Pac. 873; Kelley v. United States, 7 Ind. T. 241, 104 S. W. 604.

Other holdings of this court upon the question of granting a continuance are as follows:

“An application for a continuance should state the name and place of residence of each absent witness. It should then allege what due diligence has been used to secure the attendance of said witness, and should disclose the diligence as to each witness by stating the time at which the subpoena was issued, and when and by whom served, and that the witness was summoned to be present at the time of the trial. The better practice is to attach the subpoena for each witness, with the return thereon indorsed, to the motion for a continuance, and make it a part thereof, so that the court can tell whether or not as a matter of fact due diligence has been used. The motion should allege in general terms that the testimony of the absent witness is material and set out the facts expected to be proved by each absent witness, and it must also contain such statements as will show that such expected evidence is both competent and material. If the testimony of the absent witness cannot be procured from any other source, this fact should be stated. If it can be procured from some other source, the motion should contain a statement as to why it was not so obtained. But, if such absent testimony can be obtained from some other source, the motion must state the special facts which in reason and justice would entitle a defendant to a continuance in order to enable him to obtain cumulative evidence. A motion which does not comply with either of these requirements is bad on its face.” Boswell v. State, 8 Okla. Cr. 156, 126 Pac. 826; Jones v. State, 8 Okla. Cr. 756, 129 Pac. 446; Reed v. Territory, 1 Okla. Cr. 482, 98 Pac. 583, 129 Am. St. Rep. 861; Key v. State, 10 Okla. Cr. 206, 135 Pac. 950.
“An application for a continuance, which consists of a statement of negative conclusions of fact, is not sufficient.” Reed v. Territory, 1 Okla. Cr. 482, 98 Pac. 583, 129 Am. St. Rep. 861.
“An application for a continuance should be most strongly construed against the pleader. Intendment and presumption will not be indulged in to support such application.” Musgraves v. State, 3 Okla. Cr. 421, 106 Pac. 544.

Defendant’s application for continuance on the ground that his attorney had not had time to prepare for trial was properly overruled. Hunter v. State, 3 Okla. Cr. 533, 107 Pac. 444.

“When an application for a continuance is based upon the ground of want of time in which to prepare for trial, and it appears that the indictment against defendant has been pending for six or seven weeks, during which time the defendant has been represented by counsel, the application is addressed to the sound discretion of the court, and his action is not subject to review, in the absence of a showing of abuse of this discretion.” Johnson v. State, 1 Okla. Cr. 321, 97 Pac. 1059, 18 Ann. Cas. 300.

Counsel for plaintiff in error quotes and relies upon the case of Ennis v. State, 13 Okla. Cr. 675, 167 Pac. 229, L. R. A. 1918A, 312; but it is nowhere disclosed by the record in this case that counsel for plaintiff in error complied with or attempted to comply with sections 6037 and 6038, R. L. 1910, as was done in the Ennis Case. In the Ennis Case an effort was made to procure the testimony of absent witnesses; here no application of any kind was made to procure compulsory process for that purpose.

The second proposition discussed in plaintiff in error’s brief goes to the questions of conspiracy, corroboration, and sufficiency.

The witness Akins and Sheldon testified substantially that they and Hunter, on the morning following the theft of the heifer in question, butchered the animal on Hunter’s premises and buried tbe hide and head in the cow lot near the shed. Akins is corroborated by the physical fact that the head and hide of the animal were found buried at the place where he stated they were. He is further corroborated by Mrs. Velva Akins, who was not his wife at the time the crime is alleged to have been committed, but was employed as a cook at the ranch at that time, and who stated that about two days after the Armistice celebration at Woodward they had no meat for supper, but did have fresh beef for breakfast, and that at noon time when she went to the bunkhouse to obtain meat for dinner the four quarters of a beef were hanging in the bunkhouse.

Sheldon was a mere hired man, who was directed by his employer, in the course of his employment, to help butcher the animal in question. He was not implicated in the original theft, although he may have suspected that the animal was stolen. He testified that he noticed that it was branded with Howlett’s brand. ' Under such circumstances, Sheldon was not a eoconspirator or an accomplice; at most, he was merely an accessory after the fact. Section 2105, R. L. 1910; 1 E. C. L. “Accomplices,” § 3.

Sheldon’s testimony strongly corroborated the evidence of the accomplice Akins, tending to prove that the material portions of Akins.’ story were true. Sheldon’s testimony, the testimony of Velva Akins, and the finding of the hide and head of the stolen animal, all considered together in connection with the conduct of the accused Hunter, constitute ample corroboration of the testimony of Akins.

With reference to Hunter’s conduct, it was shown that, after the sheriff and Mr. Gatewood had made some search about the premises to locate the' buried hide and failed to find it, Akins was brought by a deputy sheriff from the jail, and, after his arrival at the ranch, said, in the presence of the plaintiff in error, that there was a hide, head, and feet there in the ground. The testimony of Mr. Howlett further shows that upon digging deeper at the place indicated by Akins, they found the head and the hide, but that before they completed their investigation, while they were still digging, the plaintiff in error left the investigators and. went away to his house and was not present when the hide and head were found. This action of plaintiff in error was significant of guilt and tends to corroborate further the testimony of the accomplice Akins. The rule announced by this court in the case of Jolliffee v. State, 21 Okla. Cr. 278, 207 Pac. 454, which case is cited by counsel for plaintiff in error, is:

“A conviction will be set aside where the state’s case rests almost wholly upon the testimony of an accomplice, corroborated only by circumstances not inconsistent with the innocence of the accused, and amounting at most to a mere suspicion.”

This is not the situation in the case at bar. There was but little evidence worthy of credence before the jury, consistent with the innocence of the accused. On the contrary, the evidence as a whole points to the guilt of the plaintiff in error, and the corroboration of the accomplice was convincing and sufficient.

The gist of this action was not that of a criminal conspiracy; the conspiracy was alleged merely as an incident to the crime charged, as a foundation for the introduction of evidence, and to explain and throw light upon the transactions as a whole. These fragments of evidence tending to show other thefts of cattle and a general conspiracy to steal cattle were permitted to go to the jury, under proper instructions from the court, to enable the jury better to determine whether the particular larceny charged was established. The evidence we think was properly limited by instruction No. 6, as follows:

"Some evidence has been admitted in this cause tending to show that the defendant was engaged with others in the larceny: of certain cattle at other and different dates than the date upon which the defendant is charged with the offense for which he is on trial, and in this connection you are instructed that before you can consider such, evidence against the defendant in this cause, you must find and believe from the evidence beyond a reasonable doubt that he was engaged in the larceny of cattle at other an'd different times than that of the charge upon which he is on trial; and then you can consider such different acts of larceny, if any, only as tending to show the defendant’s connection with the offense for which he is on trial.”

Exceptions were taken to practically every paragraph in the court’s instructions in this case. We have examined these carefully and find the instructions, separately and as a whole, fair to the defendant.

Other alleged errors have been urged, affecting the admissibility of testimony and the conduct of the court and counsel. After a painstaking examination of all the things urged by counsel for the accused, we hold that these objections are without substantial merit. To review all of these in detail would prolong this opinion to no profit.

The judgment of the trial court is affirmed.

DOYLE, P. J., and MATSON, J., concur.


text:
    CHARLES H. GRISWOLD v. STATE.
    No. A-3043.
    Opinion Filed Dec. 9, 1922.
    Rehearing Denied March 12, 1923.
    (212 Pac. 1018.)
    (Syllabus.)
    1. Embezzlement — Public Officer’s Embezzlement of Particular Gross Amount by Series of Appropriations of Small Amounts. A public officer charged with the safekeeping and disbursement of public money may, by a series of personal appropriations of small sums of such public fund, render himself liable to prosecution for the embezzlement of a particular gross amount, as constituting but one offense, under the provisions of our statutes defining embezzlement of funds willfully appropriated to uses not in keeping with his official trust.
    2. Embezzlement — Demand for Proper Disbursement of Public Funds upon Refusal of Officer in Charge not Necessary to Complete Offense. Where a public officer willfully fails or refuses to account for, pay, and disburse public money in his charge as the law directs, a demand for such payment is not necessary to complete the crime of embezzlement as defined by statute. Under such circumstances, the law itself constitutes sufficient demand.
    3. Indictment and Information — Refusal to Compel State to Elect upon Which One of Two Counts it Would Rely, not Error. Where an information stated but one offense, but this was stated in two separate counts or paragraphs, there was no error committed by the court in refusing to require the county attorney to elect on which count or paragraph th'e state would rely.
    4. Evidence — Embezzlement by Public Officer — Books and Records of Officer Admissible Though All not in His Handwriting. The books and records of a public officer were properly admitted in evidence as tending to show the shortage or defalcations as charged, without a specific showing that all of such records were made by the accused or were recorded in his handwriting.
    5. Same — Records Kept by Accused Prima Facie Evidence of Transactions. An instruction to the effect that the records kept by the accused were prima facie evidence of the transactions recorded held proper.
    Appeal from District Court, Logan County; John P. Hiek-am, Judge.
    Charles H. Griswold was convicted of embezzlement, and he appeals.
    Affirmed.

      John A. Remy and James Hepburn, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   BESSEY, J.

Charles H. Griswold, plaintiff in error, hereinafter referred to as the defendant, was on January 16, 1917, convicted of the embezzlement of public funds intrusted to him as clerk of the district court of Logan county during the years 1911 and 1912. His punishment by the verdict of the jury was fixed at imprisonment' in the penitentiary for a period of one year. From the judgment rendered on the verdict he appeals.

The evidence in this case shows that the defendant during the years 1911 and 1912, while he was clerk of the district court, from time to time held out of his official funds, for his own personal use, sums aggregating $1,999.09, as found by one expert accountant, or $2,010.19, as found by another, over and above all just credits. A shortage in a large amount had been admitted by the defendant, according to the testimony of his successor in office. Demand was made by defendant’s successor in office for the payment of these delinquencies, to which the defendant made no response.

Upon the facts the defendant made no defense except to show by numerous witnesses that he was and had been a person of good moral character; that the various sums making up the aggregate shortage, if they constituted embezzlement, were numerous and separate offenses; and that the proof adduced did not support the allegations of the com-, plaint.

The several assignments of error here urged may be summarized as follows:

First. The court erred in overruling defendant’s demurrer to the information and other motions attacking its sufficiency.

Second. That the evidence was insufficient to sustain the conviction.

Third. Errors alleged in the instructions to the jury.

The vital portion of the information is as follows:

“ * * * That while the said Charles H. Griswold was acting as such clerk of the district court of said county of Logan, as aforesaid, he, the said Charles H. Griswold, received, collected and took into his possession, and under his official capacity, aforesaid, and by virtue of his office of clerk of the district court of the county of Logan, state of Oklahoma, as aforesaid, at different times and from day to day, during the time from February 7, 1911, to and including January 7, 1913, many and various sums of money* checks, drafts, valuable securities, effects, vouchers, for money and other evidences of indebtedness, all of which was by him, the said Charles H. Griswold, received and collected as money, and is legally chargeable against him as money, and which came into his possession and under his control through and by virtue of his trust as such clerk of the district court of Logan county, Okla.
“And that the aggregate amount so collected and received by him, and that came into his possession, and under his care, during said period by virtue of said office, as aforesaid, was $25,317.08. That said money, cheeks, drafts, valuable securities, effects, vouchers for money, and other evidences of indebtedness, as aforesaid, received and collected by the said Charles H. Griswold, as aforesaid, were so collected by the said Charles H. Griswold for and belonging to, and were the goods, chattels and property of various persons, classes of persons, estates and corporations who were litigants in the district court of said county from the 7th of February, 1911, to and including the 7th of January, 1913, and of the said Logan county. That said sum of $25,317.08 was collected as court costs, witness fees, judgments, fines and penalties, forfeited bonds and recognizances, and money received by order of said court, as shown by the books, records and papers of said office during said period. That it was the official duty of the said Charles H. Griswold, as such clerk of said court, to receive said money, and to pay out the same to the county treasurer of said county, and to the various litigants to whom said money legally belonged, according to law. • That said money, checks, drafts, valuable securities, effects, vouchers for money, and other evidences of indebtedness, as aforesaid, were received and collected by the said Charles H. Griswold, and the same came into his possession and under his care by virtue of said office of clerk of the district court of Logan county, Okla., and were, by the law of the state of Oklahoma, required to be collected and received by him, the said Charles H. Griswold, as clerk of the district court of said county, as aforesaid; and the said Charles H. Griswold of the money, cheeks, 'drafts, valuable securities, effects, vouchers for money, and other evidences of indebtedness, as aforesaid, that had been collected and received by him, as aforesaid, during said period and that had come into his possession and under his care by virtue of his said office of clerk of the district court of said county, as aforesaid, did, at and in the county of Logan, in the state of Oklahoma, and within the jurisdiction of this court, on the 7th day of January, 1913, unlawfully, willfully, intentionally, fraudulently and feloniously embezzle and convert to his own use, and not in the due and lawful execution of hiá trust, the sum of $2,010.91, in good and lawful money of the United States, without the assent of the county of Logan, aforesaid, or of any of the persons, classes of persons, estates or corporations above mentioned, and failed, refused and neglected to turn over said sum of $2,010.91 to his duly elected, qualified and acting successor in and to said office, as required by law, contrary to and in violation of the statute in such ease made and provided and against the peace and dignity of the state.
“Second Count.
“ * * * The said Charles H. Griswold, as such officer, and clerk of the district court of said county, was then and there instructed, and did then and there have in his possession and under his care, by virtue of his office, certain moneys, to wit, the sum of $2,010.91, the property and effects of the said county of Logan, and of the various litigants in said court, and of the value of $2,010.91 in good and lawful money of the United States, and the said Charles H. Gris-wold did then and there unlawfully, fraudulently, and feloni-ously embezzle and convert to his own use and not in the due and lawful execution of his trust, without the assent of the said county of Logan, or of the persons thereunto authorized, all of the said money, as aforesaid, with the care and custody of which he, the said Charles H. Griswold, was then and there, as aforesaid, intrusted, and did then and there have under his control by virtue of his office of clerk of the district court' of said county, aforesaid, contrary to and in violation of the statutes in such eases made and provided and against the peace and dignity of the state.”

The statutes of this state in force and prescribing the fiscal duties of court clerks during the years 1911 and 1912 were sections 3213, 3214, and 4286, R. L. 1910.

“3213. Any county, township and district officer who is required by law to make monthly or quarterly reports to the board of county commissioners who fails or refuses to make such reports, or who makes a false or fraudulent report, shall be deemed guilty of a misdemeanor and in addition to his punishment he shall forfeit his office; and when any such officer shall fail or refuse to account for or to pay over any money in his official capacity, he shall be deemed guilty of embezzlement, and in no case shall any county officer retain any perquisites of his office.”
“4286. Upon the death, resignation, suspension or removal from office of any officer, or upon the expiration of his term, all public moneys, books, records, accounts, papers, documents and property of other kind in his hands or held by him by virtue of his office, shall be delivered to his successor.”

If the willful failure of the defendant to account for and pay over the public moneys monthly, as the law directs, and the personal retention of these several sums, not in keeping with his trust, constitutes but one offense, then the information, we think, is sufficient, under the provisions, of section 3213, supra. If a willful failure to account for and pay over to his successor in office, coupled with a personal use of the trust funds, although the shortage was made up of numerous separate items, constitutes but one offense, the information would be sufficient on that theory. The defendant idid both; he faded to report and pay monthly, as the law directs, and he failed to pay to his successor in office, as the law directs; and both delinquencies, according to the testimony, were the result of a personal use, from time to time, of portions of his official funds. Did this constitute a series of small em-bezzlements, or may the willful retention and misapplication of the aggregate be considered as constituting but one offense ?

The information in this case was drawn under the theory that the defendant had committed but one offense, in that he, as a public officer, failed to account for official funds received by him by reason of a series of petty and continuous conversions of official money in small sums — manifestly difficult, if not impossible, to prove. Such a pleading in a case of embezzlement is not only permissible, but is supported by the highest authority, in construing statutory regulations similar to ours relating to misapplication of public funds. In Ruling Case Law, vol. 9, pp. 1290 and 1291, the rule is stated as follows:

“There are authorities which hold that where the crime consists, not in the embezzlement of a single definite quantity of coin or bills, but in a failure to account for a number of small sums — a series of petty and continuous peculations— where it would manifestly be impossible, probably for the defendant himself, but much more for the prosecution, to state of what the money embezzled consisted, and allegation of a particular amount is sufficient. * * * In the case of embezzlement by a public, officer considerable latitude is permitted in the description of the money embezzled, for it is at times impossible to trace the particular fund in the case of an officer handling public money coming through so many avenues and through so many different individuals; the allegations of a particular gross amount is therefore usually held sufficient. For example, in an indictment against a county treasurer it is not necessary to describe specifically the embezzled funds and to name the several owners thereof. In his official capacity a county treasurer may collect taxes which are eventually divided and paid to the state, the county, the township and various other municipalities and institutions.”

See, also, the following cases as applying to the wrongful personal use of accumulated trust funds: State v. Leonard, 56 Wash. 83, 105 Pac. 163, 21 Ann. Cas. 69; People v. McKinney, 10 Mich. 54; Sigsbee v. State, 43 Fla. 524, 30 South. 816; State v. Bickford, 28 N. D. 36, 147 N. W. 407, Ann. Cas. 1916D, 140; Jackson v. State, 76 Ga. 551; State v. Smith, 13 Kan. 274; State v. Graham, 13 Kan. 299; State v. Ensley, 177 Ind. 483, 97 N. E. 113, 34 Ann. Cas. 1306; Territory v. Hale, 13 N. M. 181, 81 Pac. 583, 13 Ann. Cas. 551; Ker v. People, 110 Ill. 627, 51 Am. Rep. 706; 4 Am. Cr. Rep. 211; Goodhue v. People, 94 Ill. 37.

In the case of State v. Bickford, supra, the court said:

“What the state was developing in its proof was not an isolated embezzlement, but a longdrawn out and intricate scheme. This, under its general charge in the information, it was entitled to do. The reasons for the rule are clearly set forth by the Supreme Court of Illinois in Ker v. People, 110 Ill. 627, 647, 51 Am. Rep. 706, 4 Am., Crim. Rep. 211, when in its opinion it says : ‘It is insisted tliat the evidence shows an accumulation of offenses, and for that reason it was error in the court to deny defendant’s motion to compel the prosecution to elect upon what alleged act of larceny or embezzlement a conviction would be asked. The court, by its ruling, submitted all the evidence touching the embezzlement of funds and securities by defendant, to the jury, and it is not perceived how it could have properly done otherwise. Embezzlement is a crime defined by statute, and it was entirely competent for the Legislature to declare what acts would constitute the crime, and fix the measure of punishment. One element that enters into the statutory definition of embezzlement is the fiduciary or confidential relation. * * * Under this rule, which is certainly a wise one, it was proper the court should permit all the evidence of what defendant did by reason of his confidential relations with the banking firm whose clerk he was, to go to the jury, as was done, and if the jury found, from the whole evidence, any funds or securities for money had been embezzled or fraudulently converted to his own use, by defendant, it was sufficient to maintain the charge of embezzlement.’ ”

In eases like this it is unnecessary to allege that a demand for payment has been made and refused.

“Such requirement, it has been urged, would be a direct encouragement' of laxity of duty, for an agent, and especially a public officer, could retain money that came into his possession for an indefinite time; then if an investigation would disclose that such money had been retained, all that the accused would have to do would be to pay it over on demand.” 9 R. C. L. 76.
“The statute itself demands the performance of the duty, and fixes a penalty for the felonious failure to do it. * * * On this theory (that a demand is necessary), the only risk assumed by a retiring officer, in fraudulently converting to his own use all the public funds in his hands at the termination of his term of office, would be the lack of financial ability to meet the demand when made, and the act could never practically apply to the felonious defalcations of officers except when such officers might be so unfortunate as to be insolvent. Where the relief sought by the enactment of the law is, as here, the better safeguarding of public funds against the conversion thereof by ‘dishonest officials, it would be absurd to impute to the lawmaking body the further intention of making public funds the prey of such public officers.” State v. Ensley, 177 Ind. 483, 97 N. E. 113, Ann. Cas. 1914D, 1306.

In this case the defendant was charged with being a public officer, and a collector of money in his official capacity and holding such in his fiduciary capacity, and instead of paying these funds to the persons entitled thereto he retained them, went out of office, and failed and refused to turn over to his successor these funds which came into his hands by virtue of his office and trust; that he converted this money to his own use and benefit, and not in the due and lawful execution of his trust. A charge so made in the language of the statute is sufficient.

15 Cyc. 523, lays down the following rule:

“In an indictment or information against a public officer for embezzlement it is sufficient to follow the statute and allege the acts and facts therein declared to constitute the crime. It is not necessary to¡ negative a matter of defense.” —citing a number of eases, a sample of which, from 18 Gent. Dig. 700, reads as follows, in part:
“An indictment alleging that defendant county treasurer, who was duly elected to said office of public trust, did fel-oniously and fraudulently embezzle a large sum of money (stating the amount) which was then and there in his possession by virtue of his office, is sufficient. Goodhue v. People, 94 Ill. 37.”

Upon the question of requiring the county attorney to elect under which count he would proceed with the prosecution, section 5741, R. L. 1910, provides that “the same offense may be set forth in different forms or degrees under different counts.” Under such circumstances an election cannot be required. Boone v. State, 15 Okla. Cr. 29, 175 Pac. 61; Hughes v. State, 7 Okla. Cr. 117, 122 Pac. 554; 14 R. C. L. 199, 201.

Defendant complains that, because the court permitted the shortage to be shown in part by the books kept by the defendant and his deputies, the evidence was insufficient to sustain a verdict beyond a reasonable doubt; that the defalcation may have been made by some deputy, or that there may have been mistakes in the bookkeeping. The negative of this inference is shown by other testimony. The official books and records required to be kept were competent evidence, to be given such weight asi the jury might determine. These records showed a shortage, and the defendant by his conduct admitted it. A personal use by defendant of many of the items going to make up the shortage was shown. A personal defalcation by defendant, as shown by his official records, was' well corroborated by other evidence.

Complaint is also made of certain instructions of the court, particularly of the two instructions here quoted:

“(6) The court instructs the jury that under our law, any officer upon the expiration of his term of office, all public moneys, books, records, accounts, papers, and documents of every kind in his hands or held by him, by virtue of his office, shall be delivered to his successor in office, and the fraudulent failure or refusal to account for and pay over the funds in his hands being established, the same is prima facie evidence of its conversion.”
“ (7) The phrase ‘prima facie evidence’ is such evidence as in the judgment of the law is, sufficient to establish the unlawful intent, unless rebutted or on the contrary proved; yet it does not make it obligatory upon the jury to convict after the presentation of such proof. Whether or not such evidence is sufficient to overcome the presumption of innocence of the defendant, and to establish his guilt beyond a reasonable doubt, when all the evidence, including the presumptions, is considered, is for the determination of the jury.”

These instructions, in connection with the others given, amply safeguarded the rights of the defendant. The instructions quoted simply state the law defined in section 4286, R. L. 1910, requiring an officer intrusted with public money to turn over all funds so held to his successor in office. This the evidence shows the defendant willfully and fraudulently failed to do. A personal use of the fund was willful as well as a fraud upon the state and the county to which it belonged.

The judgment of the trial court is affirmed.

DOYLE, P. J., and MATSON, J., concur.


text:
    EMERSON W. QUEEN v. STATE.
    No. A-3752.
    Opinion Filed Nov. 18, 1922.
    Rehearing Denied March 12, 1923.
    (212 Pac. 1021.)
    (Syllabus.)
    1. Continuance — Discretion of Court — Denial in Absence of Showing of Diligence. It is no abuse of discretion to overrule an application for continuance on the ground of absence of witnesses who are out of the state, where it is not shown that any one of them would or could be procured within any reasonable time, and where no diligence is shown to procure their attendance or to take their depositions, and where their alleged testimony, considered in connection with other facts proven on the trial, appears to be probably untrue.
    2. Same — Reasonable Time to Make Defense — Delay in Procuring Witnesses. Every defendant has a right to have a reasonable time to make his defense, but neither a defendant nor his counsel will be justified in waiting until the day of the trial to procure witnesses.
    3. Same — Unpreparedness of Counsel. Where counsel for defendant had been busy in other cases, and where one of his counsel was sick, but able to participate in the greater portion of the trial, it was within the discretion of the court to grant or refuse a continuance.

      4. Same — Application Based upon Hearsay Statements or Mere Rumor. An application for a continuance, predicated upon hearsay statements of third persons or mere rumor, is insufficient.
    5. Witnesses — Defendant on Cross-Examination Subject to Rules Applying to Other Witnesses. The rule is well established in this state that, where a defendant takes the stand in his own behalf, he becomes a witness on cross-examination, subject to all the rules applying to other witnesses.
    6. Witnesses — Impeachment—Questions as to Convictions of Offenses Involving Moral Turpitude. A witness may he asked, for the purpose of affecting his credibility, if he has been convicted of a felony, or of any crime which involves a want of moral character; a conviction of violating the prohibitory law involves moral turpitude.
    7. Witnesses — Limiting of Cross-Examination as to Collateral Matters. The limiting of cross-examination of a witness concerning matters purely collateral and not germane to the issue, for the purpose of impeaching the witness, held not error.
    8. Trial — Rule as to Preservation of Objection to Exclusion of Evidence. As a general rule, in order to reserve an available objection to the exclusion of evidence, a proper question must be asked, and, on objection thereto, an offer must be made at the time, showing what evidence will be given if 'the witness is permitted to answer, the purpose and object of the testimony sought to be introduced, and all .the facts necessary to establish its admissibility.
    Appeal from District Court, Woods County; Arthur G. Sutton, Judge.
    Emerson W. Queen was convicted of grand larceny, and he appeals.
    Affirmed.
    A. J. Stevens and W. A. Briggs, for plaintiff in error.
    George P. Short, Atty. Gen., and R. E. Wood, Asst. Atty. Gen., for the state.
   BESSEY, J.

Emerson W. Queen, plaintiff in error, herein referred to as the defendant, was on the 15th day of October, 1919, convicted of the larceny of an automobile, and the court, on October 18, 1919, fixed his punishment at confinement in the state penitentiary for a term of five years.

The proof in this case shows that Grant Van Bibber, the prosecuting witness, lived at Alva, Okla., where he was engaged in the real estate business; that he was the owner of a green Hudson Speedster automobile, on which there was one Royal Cord tire and three Firestone tires, with treads of three different designs; that this car, which was nearly new, was stolen from the owner’s garage at Alva on the night of June 19, 1919; that one of the fenders had been broken and repaired with a line of rivets; and that the rear curtain of the top had been altered by placing therein a large plate glass. Immediately upon discovery of the theft, the morning of June 20th, witness notified the sheriff of Woods county, and with the sheriff tracked and followed the car for some distance leading toward Wichita, Kan. The sheriff also sent a description of the stolen car to police officers in adjacent .towns in Kansas and Oklahoma.

The defendant, Emerson W. Queen, andl his father, Dr. Queen, lived in Wichita, Kan. Reports came to the sheriff’s office that the stolen car had been seen and identified in Hutchinson, Kan., in the possession of the defendant. A deputy sheriff went to Wichita, and inspected the premises of Dr. Queen, where there was a barn used as a kind of garage, in which there were two large acetylene or oxygen tanks, some mud chains, and possibly other automobile equipment. Tracks corresponding to the tread of the tires on the stolen automobile were found on the floor and approaches of this barn. Dr. Queen at that time was said to own a Chandler car, but no car of any kind was in this garage at the time the inspection was made. The deputy sheriff then interviewed Dr. Queen, and informed him that hi» son and one Jay Elliott were suspected of having stolen the missing car, and, according to the testimony of this deputy sheriff, Dr. Queen remarked to the officer that these boys had been causing him lots of trouble, and promised to procure the delivery of the car to the deputy sheriff that evening, at a designated hour and place on the streets of Wichita. Dr. Queen failed to make good his promise, giving as a reason that he was unable to find his son and Elliott, but again promising that he would do so presently and procure the car for the officer. In one of these conversations he protested that he had had nothing to do with the taking of the car. After making three promises of this character, he finally reported that he had located his son, but that he claimed to have had nothing to do with the car, and knew nothing of its whereabouts. This was on the Saturday following the theft of the car.

It was the theory of the state that Dr. Queen made these promises to the deputy sheriff in bad faith, for the purpose of detaining the officer, and in the meantime aiding his son and Jay Elliott to escape. The defendant did escape, and became a fugitive from justice under the assumed name of Ed Sherman. Some months later he was apprehended in Memphis, Term., and brought back to Woods county, Okla. Two or three days after defendant’s return to Oklahoma the stolen car was found, partially concealed between two straw stacks near Kingman, Kan. The engine number had been changed, apparently by the use of an acetylene torch; the plate glass in the rear curtain had been removed; the tread on the tires was much worn, indicating that the car had been run several thousand miles.

Pete Grandon, a witness for the state, was in the automobile and garage business at Hutchinson, Kan., and incidentally was authorized to help the sheriff of that place to locate and recover stolen cars. He had a description of this stolen Hudson, and on the first or second day following the theft this witness saw defendant driving a green Hudson roadster in Hutchinson, noticing at the time the fender, which had been repaired with rivets. As the defendant was driving north across Main'street, at about 12 or 15 miles an hour, the witness was stopped by a jam of cars, and before he could get out of this traffic jam defendant was out of his sight, and he was unable to follow him. Witness notified the sheriff, who in turn notified the officers of Woods county, and the deputy was sent to search for the ear as above stated.

It was further shown in evidence that at the time this car was stolen it had a defective or weak battery, which caused the lights to flicker, and that two persons residing along the road leading from Alva to Wichita saw, in the early morning, of the 20th of June, a fast-moving roadster having lights of this description.

Defendant’s defense was an alibi. He claimed that at the time the car was stolen he was with two men named Buford and Metz on a fishing trip on Rock creek, about 40 miles southeast of Wichita and about an equal distance from Alva; that the fishing party was at this point from the morning of the 19th until the evening of the 24th of June. Defendant claims that he returned to Wichita on Sunday, June 22d, and learned from his father that he was accused of having taken this car; that he then returned to Rock creek, remaining there until Tuesday evening, when he again returned to Wichita, and immediately departed for the Kansas harvest fields; that his health was poor, and he did little work; that he assumed the name of Ed. Sherman. After remaining in the harvest camps foi some time, he went to Memphis, where he was also known as Ed. Sherman. At the time of his arrest in Memphis he had two automobiles, one of which he claimed was his and the other his father’s; he also had on his person $3,800 in currency at the time of his arrest.

On rebuttal the officer who brought the defendant back from Memphis testified that the defendant told him, on the way home, that he was in Omaha at the time the car was stolen. There is other unimportant testimony in the record tending to throw some light upon the transactions above related, which need not be here recited.

The first assignment of error urged by defendant is that the court abused his discretion in overruling the motion for a continuance. It was alleged in the application for a continuance that one Clyde Smith, of Hutchinson, Kan., was a material witness for the defendant, setting out somewhat in detail the testimony expected to be given by this witness. Without going into the question of the relevancy of the testimony sought through this witness, there was no: showing that the witness could be procured later or where he was, except that he was referred to as Clyde Smith of Hutchinson, Kan. No showing was made that he was in Hutchinson at that time, and no showing or declaration was made that his evidence could probably be obtained. It appears further that the defendant did not learn of the facts expected to be proved by this witness until Saturday, October 11th, three days before the trial. During a part of the intervening time the defendant’s attorneys had been engaged in another trial. The court, in the absence of the jury, interrogated the defendant, and found that the defendant did not know Clyde Smith, and that he did not know where he lived; that the statements contained in the affidavit for a continuance were based upon information given him by one Stevens, and that defendant did not even know from what source Stevens had obtained his information. Stevens, though apparently available, gave no supporting evidence. A court should not grant a continuance to procure evidence predicated upon mere rumor. Moreover, it appears from the record elsewhere that the defendant, some weeks prior to the trial, had been apprehended and arrested at Memphis, Tenn., in possession of two automobiles and $3,800 in money; that Dr. Queen, his father and codefendant, and the defendant, himself, were at large on bond. It would therefore appear that the defendant could have made some effort to procures this witness, or at least could have obtained more definite information concerning the facts sought to be shown by the witness. The witness, if present, might have testified to an entirely different state of facts.

The application also stated that the defendant desired the testimony of William Buford and Ed. Metz, of Wichita, Kan., who were alleged to have been with the defendant on a fishing trip at the time the automobile in controversy was stolen. No showing was made that these witnesses could probably be procured later, and no efforts appear to have been made by the defendant or his attorneys or by the defendant’s father to definitely locate or procure these witnesses.

It is further urged in the application that the time of defendant’s counsel had been taken up by the trial of other causes to such an extent that they could not go to Hutchinson and Wichita to locate and interview these witnesses. It appears to us, and probably appeared to the court, that a defendant having $3,800 in money had the means to procure this testimony in other ways. Under such circumstances the defendant had no right to assume that it was unnecessary for him to make any effort to procure testimony, and that he could wait until the day of trial, expecting the indulgence of the court in granting a continuance. In Gentry v. State, 11 Okla. Cr. 355, 146 Pac. 719, it was held:

“It is no abuse of discretion to overrule an application for a c<$ntinuance on the ground of absence of witnesses, who are out of the state, where it is not shown that any one of them would or could be procured within any reasonable time, and! where no diligence is shown to procure their attendance, or to take their depositions, and where their alleged testimony, considered in connection with other facts proven on the trial, appears to be probably untrue” Tucker v. State, 9 Okla. Cr. 587, 132 Pac. 825; Buxton v. State, 11 Okla. Cr. 85, 143 Pac. 58; Harrison v. State, 10 Okla. Cr. 210, 135 Pac. 948.

Every defendant has a right to be represented by counsel and a right to have a reasonable time to make his defense, but neither the defendant nor his counsel will be justified in waiting, until the day of trial to procure witnesses. Davis v. State, 10 Okla. Cr. 169, 135 Pac. 438; Jones v. State, 8 Okla. Cr. 576, 129 Pac. 446. Where counsel for defendant had been busy in other cases, and where one of such counsel was sick, but able to participate in the greater portion of the trial, it was within the discretion of the court to grant or refuse a continuance. 6 R. C. L. “Continuance,” § 6. For the reasons stated above, supported by the cases cited, we hold that there was no abuse of discretion in overruling the motion for a continuance in this ease.

The defendant complains further that the court erred in permitting the deputy sheriff to relate conversations with Dr. Queen at Wichita. The information in this case charged that this defendant, Jay Elliott, and Dr. Queen, acting together and with each other in pursuance of a common design and purpose, stole the automobile in question, and upon that theory of the case it was proper to show any acts or conversations of any of the eo conspirators that might tend to throw light upon such common purpose or design, if any there was. The question of whether or not there was such a conspiracy was for the jury upon consideration of all the evidence touching upon that point. Proof of a conspiracy to commit a crime must of necessity in most cases be made by showing a number of independent acts, conversations, or circumstances tending to show an unlawful common purpose of the conspirators; and the order in which such proof is made is ordinarily not material. Matthews v. State, 19 Okla. Cr. 153, 198 Pac. 112; Adams v. State, 21 Okla. Cr. 448, 209 Pac. 189. In this case there' was proof tending to show a concert of action between this defendant and his father, Dr. Queen.

The defendant took the witness stand in his own behalf and on cross-examination, for the purpose of affecting his credibility, the following questions were asked him:

“Q. Have you ever been convicted of the offense of dealing in narcotics in the city of Wichita, Kansas? A. No, sir.
“Q. Or of any crime? A. No, sir; never was convicted.
“Q. Did you ever plead guilty of a crime? A. I haven’t plead guilty to a felony.
“Q. Did you ever plead guilty to a misdemeanor? A. I think so.
“Q. What was that misdemeanor? A. I had a drug store there, and I may have pleaded guilty to violating the prohibitory law. Never was convicted in any higher court.”

Objections were interposed to all of these questions, and exceptions taken and allowed.

Section 585, Comp. Stat. 1921, provides :

“No person shall be disqualified as a witness in any civil action or proceeding by reason of his interest in the event of the same, as a party or otherwise, or by reason of his conviction of a crime; but such interest or conviction may be shown for the purpose of affecting his credibility.”

Section 2699, Comp. Stat. 1921, provides that, except as otherwise provided, the rules of evidence in civil eases shall be applicable to criminal cases.

The rule is well established in this state that, where a defendant takes the stand in his own behalf, he becomes a witness, on eross-examination subject to all the rules applying to other witnesses. Smith v. State, 14 Okla. Cr. 348, 171 Pac. 341.

In an early ease (Slater v. U. S., 1 Okla. Cr. 275, 98 Pac. 110) it was held that a witness may be asked, for the purpose of affeeting his credibility, if he has been convicted of a felony, or of any crime which involves want of moral character (Sights v. State, 13 Okla. Cr. 627, 166 Pac. 459; Smith v. State, 14 Okla. Cr. 348, 171 Pac. 341; Byars v. State, 15 Okla. Cr. 308, 176 Pac. 253). It has been held in this state that a conviction of violating the prohibitory law involves moral turpitude. Musgraves v. State, 3 Okla. Cr. 421, 106 Pac. 544; Fowler v. State, 8 Okla. Cr. 130, 126 Pac. 831. The questions complained of were not in proper form. However, all the questions were answered in the negative except one, and the fact that this question was not in proper form, considered with the answer given, is, in our opinion, not prejudicial under the circumstances here.

The defendant complains further that there was error in sustaining objections to certain impeaching questions asked the witness Grandon. On cross-examination this witness had been questioned in some detail with reference to his connection with a certain Buick car that had been stolen at another time by other persons. In the course of this examination defendant sought to show that this witness was endeavoring to conceal this Buick car, and that there was an agreement between Van Bibber and the witness that Grandon was to have this Buick car in consideration of his testifying in this case and assisting the prosecution. This witness and Yan Bibber both denied .these accusations. The questions toj which objections were sustained related to when and the length of time the Buick car was in the possession of one Clyde Smith, and whether or not there was a reward offered for its recovery. This portion of the record discloses that the defendant was permitted to cross-examine this witness at some length concerning this Buick car, and we think the court committed no error in limiting further cross-examination on matters purely collateral and not germane to the issue. Defendant’s efforts to impeach the witness were unsuccessful, and any answers which might have been given to the questions propounded, in the light of the answers which were given, would have no tendency to impeach the witness.

Defendant complains also that the court erred in sustaining objections to questions propounded to the county attorney, who was called as a witness for the defendant. These questions related to whether or not there was a reward offered for the return of the stolen Buick car. There was no connection shown between the theft of this Buick car and the Hudson ear here in controversy, and testimony concerning the theft of the Buick would have no tendency to elucidate the issues here, but, on the contrary, might tend to confuse the jury. There was no error in excluding this testimony.

Charles Reed, chief of police of the town of Alva, was called as a witness for the defendant, and the following questions were propounded to- him:

“I will ask you, Mr. Reed, if you were present some weeks ago in the office of County Attorney Barry, at a time when Mr. Yan Bibber was present, and if you were told at that time that if Chas. Richardson would swear that he saw Emerson Queen drive through the streets of Alva on the night of the larceny with a green Hudson Six that they, or Yan Bibber, would give $100.”
"I will ask you further if after you left the office of the county attorney if Mr. Yan Bibber followed you out of the office, and said he would make it $200.”

To both of these questions objections were interposed and sustained. The following question was then asked the witness:

“I will ask you if in accordance with that conversation if you didn’t talk to Richardson and Richardson went and took a look at Emerson Queen, and stated to you that he wasn’t the man that he saw with a green ear?”

To this Reed answered “Yes,” but the answer was stricken.

If we understand the purpose of the defendant, these questions were propounded for the purpose of impeaching Van Bibber, who, on cross-examination, had testified as follows:

“Mr. Van Bibber, did you have a conversation with Charles Reed, city marshal of this city, in the office of County Attorney Barry some weeks ago in which you told Reed to— that if he could get Charles Richardson, a citizen of this town, to swear that he saw Emerson Queen and Jay Elliott 'drive this green Hudson car through Alva that you would give him $100? A. No, sir.
“Q. Didn’t have such a conversation at all? A. I didn’t.
“Q. I will ask you further than that, after Mr. Reed left the office and had gotten out of the office, if you didn’t follow him, and if you didn’t tell him you would give $200? A. He is a liar, and anybody else that said I said that he is a d-liar too.”

Defendant made no formal offer showing the facts or circumstances which he expected to prove by this witness. Under such circumstances this court cannot review the rulings of the trial court or hold that material error was committed in the rejection of competent testimony. In order to make the necessary showing that this testimony would have been competent and material, upon request of the defendant the jury could have been withdrawn, and the court could have heard the answers of the witness. Then the record would have shown what the rejected evidence was, and this court would be in a position to pass upon the question. As the record stands, we cannot say that the trial court committed material or prejudicial error in excluding the testimony complained of. Price v. State, 1 Okla. Cr. 375, 98 Pac. 455; White v. State, 4 Okla. Cr. 160, 111 Pac. 1017; Warren v. State, 6 Okla. Cr. 1, 115 Pac. 812, 34 L. R. A. (N. S.) 1121; Collingwood v. State, 13 Okla. Cr. 443, 164 Pac. 1154; Johnson v. State, 15 Okla. Cr. 297, 176 Pac. 256; Cheeves v. State, 18 Okla. Cr. 480, 196 Pac. 726.

Further, in attempting to lay a foundation for this testimony, it will be noted that Van Bibber was asked, in effect, if he did not attempt to have Reed make an effort to corrupt Richardson, who was a witness for the state; the questions propounded to Reed were of a different import. This variance made it all the more necessary that a formal offer should have been made in order to apprise the court of the nature and import of the testimony sought.

Other assignments of error have been urged, but in our opinion these are without merit, and need not be analyzed. No prejudicial error appearing in the record, the judgment of the trial court is affirmed.

DOYLE, P. J., and MATSON, J., concur.


author: PER CURIAM.

text:
    LUTHER WARE v. STATE.
    No. A-4289.
    Opinion Filed March 14, 1923.
    (213 Pac. 1119.)
    Appeal from County Court, Stephens County; G. T. Burrows, Judge.

      Luther Ware was convicted of unlawfully manufacturing intoxicating liquor, and he appeals.
    Appeal dismissed on motion of appellant, and cause remanded for execution of judgment.
    E. H. Bond, for; plaintiff in error.
   PER CURIAM.

Plaintiff in error, Luther Ware, was convicted on a charge of manufacturing intoxicating liquor, and in accordance with the' verdict of the jury was sentenced to be confined in the county jail for 30 days and to pay (a fine of $100. From the judgment rendered on the 10th day of December, 1921, an appeal was perfected by filing in this court on April 10, 1922, a petition in error with case-made. On the 14th day of March, 1923, the plaintiff in error by his counsel of record moved the court to dismiss his appeal, which motion is sustained, and the appeal is hereby dismissed, and the cause remanded to the lower court, with direction to carry intoi effect its judgment. Mandate forthwith.


text:
    Ex parte J. N. MITCHELL.
    No. A-4610.
    Opinion Filed March 24, 1923.
    (213 Pac. 1119.)
    Application of J. N. Mitchell for writ of habeas corpus to be let to bail.
    Dismissed on motion of petitioner.
    Ben F. Williams, for petitioner.
    The Attorney General, for respondent.
   PER CURIAM.

This is an application of J. N. Mitchell for writ of habeas corpus to be let to bail, filed March 23, 1923. Now on this. 24th day of March, petitioner through his counsel of record has filed a motion to dismiss his appeal and asking leave to withdraw the said petition, which motion is granted, and the cause dismissed.


author: MATSON, P. J.

text:
    J. C. BRIGGS v. STATE.
    No. A-4300.
    Opinion Filed March 26, 1923.
    (213 Pac. 564.)
    (Syllabus.)
    Appeal and Error — Dismissal—Acceptance of Pardon. "When an appeal from a judgment of conviction is pending in this court and the plaintiff in error applies for a pardon and the same is granted, and the fact that a pardon has been granted and accepted is brought to the attention of this court, the appeal will be dismissed as having, been abandoned.
    Appeal from District Court, Ottawa County; S; C. Fullerton, Judge.
    J. C. Briggs was convicted of embezzlement, and be appeals.
    Appeal dismissed.
    Jesse A. Harp, for plaintiff in error.
   MATSON, P. J.

The plaintiff in error was charged, tried, and convicted in the district court of Ottawa county of the crime of embezzlement, and in accordance with the verdict of the jury was sentenced to imprisonment in the penitentiary for a term of four years. From the judgment rendered on the verdict on October 15, 1921, an appeal was perfected by filing in this court on April 13, 1922, a petition in error with case-made.

Pending the determination of the appeal by this court, and on the 14th day of March, 1923, plaintiff in error moved to dismiss his appeal for the reason that the Governor of this state has issued an absolute and complete pardon to the plaintiff in error.

The uniform holding of this court is that when the pardoning power extends clemency and the same is accepted pending the determination of an appeal, the appeal will be dismissed, and when an appeal from a judgment of conviction is pending in this court and plaintiff in error applies for a pardon and tbe same is granted, and the fact that a pardon bas been granted is brought to the attention of this court, the appeal will be dismissed as having been abandoned.

It is therefore considered and adjudged that the appeal herein be dismissed and the cause remanded to the district court of Ottawa county. Mandate forthwith.

BBSSEY and DOYLE, JJ., concur.


text:
    CLIFTON COPE v. STATE.
    No. A-3853.
    Opinion Filed March 27, 1923.
    (213 Pac. 753.)
    (Syllabus.)
    1. Larceny — Unnecessary to Allege Property Taken Without Consent of Owner — “Steal,” as Used in Information, Defined. In an information charging the theft of live stock, based upon section 2116, Comp. St. 1921, a specific allegation that the property was taken without the consent of the owner is unnecessary. The word “steal” in the information has a uniform signification in common as well as in legal parlance; it means the felonious taking and carrying away of the personal goods of another; it means to take without right, secretly, and without leave or consent of the owner.
    2. Trial — Limit to Number of Impeaching Witnesses and Character Witnesses. Ordinarily, it is within the discretion of the trial court to limit the number of impeaching witnesses. The number of character witnesses that may be permitted to testify will be governed by the circumstances in each particular ease.
    3. Same — Arbitrary Limit on Number of Witnesses on Particular Issue Disapproved. It is bad practice by a fixed rule of court to arbitrarily limit the number of witnesses ' who may testify to a particular issue. Such a rule precludes an exercise of discretion.
    4. New Trial — Larceny—Conviction Based on Witness Partially Impeached — Showing of Newly Discovered' Evidence. Where a verdict of conviction of larceny rests largely upon the testimony of a witness who has been partially impeached, and a showing is made of newly discovered evidence tending to establish that the property in' issue was acquired in good faith, an application for a new trial under the circumstances here should have been granted.
    Appeal from District Court, Beaver County; Arthur G. Sutton, Judge.
    Clifton Cope was convicted of the larceny of domestic animals, and he appeals.
    Reversed and remanded.
    D. W. Buckner and C. H. Mauntel, for plaintiff in error.
    The Attorney General, and E. L. Fulton, Asst. Atty. Gen., for the State.
   BESSEY, J.

Clifton Cope, plaintiff in error, here referred to as the defendant, was by information .charged with the theft on June 1,1917, of two red heifers, one dark and one light red with white spot in forehead, about two years old, branded “P. S.” on left hip, the personal property of Bernardine Wiles and Ray Over. At the trial, April 10, 1920, the jury found the defendant guilty as charged. After the defendant filed a motion for a new trial, which was overruled, the court pronounced judgment on the verdict, fixing his punishment at confinement in the penitentiary for a term of five years. From this judgment defendant appeals.

.The information charged in substance that the defendant unlawfully and feloniously, by stealth and fraud, did take, steal, and drive away two red heifers (describing them), the property of Wiles and Over, of the value of $100, with "the unlawful, fraudulent, and felonious intent on the part of the defendant to deprive the owners of the property and convert the same to the use of the defendant. There is no specific allegation to the effect that the property was taken without consent of the owners. The sufficiency of this information was challenged by demurrer, on the hearing of which it was urged that the information was fatally defective, in that it contained no specific allegation that the property was taken without the consent of the owners.

To assume that one could “steal” the property of another with his consent would be stating a contradiction of terms—as much so as it would be to allude to an “honest thief,” an “innocent robber,” or a “virtuous harlot.” The subject of such terms cannot be so limited or qualified without destroying the meaning of the term itself. In some of the cases decided by this court it was inadvertently held that it was necessary in an information charging the larceny of live stock to specifically allege that the property was taken without the consent of the owner, but these decisions have been expressly overruled. In the case of Underwood v. State, 23 Okla. Cr. 119, 212 Pac. 1010, decided May 16, 1922, Judge Matson, speaking for the court, said:

“The word ‘steal’ has a uniform signification in common as well as legal parlance; it means the felonious taking and carrying away of the personal goods of another; it means to take without right, secretly, and without leave or consent of the owner. In the special larceny of live stock statute making it a felony to ‘steal’ certain live stock, there being no language in the act to indicate that the Legislature intended to place a different meaning upon the word ‘steal’ than that given to it in its ordinary and legal sense, an information charging certain live stock to have been taken ‘feloniously and by stealth,’ with the further allegations that the taking was with ‘felonious intent to permanently deprive the owner thereof and to appropriate the property to the use of the taker,’ there is sufficient negation of the owner’s consent to the taking. The cases of Beck v. State, 14 Okla. Cr. 3, 166 Pac. 753, and Yates v. State, 14 Okla. Cr. 10, 166 Pac. 904, in so far as in conflict herewith, are expressly overruled; the decision in Crowell v. State, 6 Okla. Cr. 148, 117 Pac. 883, is followed.”

The conclusions reached in the Underwood Case and the reasons given therefor will be adhered to in this and like cases. This being true, we hold that the information in this case was sufficient.

There are several unusual features connected with this prosecution. It was charged that the larceny was committed June 1, 1917, by means of changing and altering the brands on the two animals in question. The prosecution was commenced 2 1-2 years later, December 3, 1919. The testimony discloses that in the meantime there was pronounced ill-feeling existing between the two prosecuting witnesses, on the one side, and the accused and a brother of the prosecuting witnesses, one Johnnie Over, on the other side, growing out of lawsuits concerning an estate in which all of these parties claimed an interest. Johnnie Over was the principal witness for the state and had been a close friend of the defendant, with whom he had lived much of the time for a number of years. Johnnie Over sold his interest, or a portion of his interest, in this estate to the defendant; a short time prior to the institution of this prosecution, he and the defendant became estranged over matters growing out of a settlement of this estate; prior to this estrangement Johnnie Over had not been on good terms with his brother and sister, the prosecuting witnesses in this case and the owners of the heifers in controversy. When the difficulty arose between the defendant and Johnnie Over, the latter informed his brother and sister that he was present when the defendant changed the brands and came into possession of the heifers alleged to have been stolen, which disclosure caused the brother and sister to institute this prosecution; about the same time a reconciliation seems to have been effected between Johnnie Over and his brother and sister.

Concerning the changing of the brands, as charged, Johnnie Over testified thus:

“Q. Now, did you ever have a conversation there at the time the branding occurred, or later, with the defendant, Clifton Cope, as to whom these cattle belonged? A. Yes, sir.
“Q. Just state to the jury what that conversation was. A. Well, I asked him, I says: ‘ You got a couple of fine heifers there. Where did you find them at? Where did you get them?’ Something like that, and he says, ‘Just keep your damn mouth shut.’
“Q. Did he tell you whose cattle they were?” A. “No.”

No other person was - present or knew about the alleged rebranding of these cattle. There was expert testimony introduced, tending to show that the brands appeared to have been changed, but nothing other than the testimony of Johnnie Over that would indicate that the accused made these changes. The defendant claimed that he purchased these cattle in good faith, marked with the brands as they were then and afterwards.

During the time intervening between the date of the alleged changing of the brands and the time Johnnie Over informed his brother and sister of the occurrence, a period of 2 1-2 years, the whereabouts of these heifers was unknown to the owners. It appears that the owners assumed that they had strayed away and no particular effort was made to locate or recover them.

The testimony of Johnnie Over was the keystone of the arch upon which this prosecution rested. If Johnnie Over’s story was a fabrication, growing out of malice or hope of reward as is indicated by some of the testimony introduced, the testimony otherwise is wholly insufficient to support the verdict. In the course of the- examination of witnesses for the defendant touching upon facts connected with the ease, four different witnesses testified that the reputation of Johnnie Over for truth and veracity in the vicinity and community where he resided was bad. The defendant sought to show by seven other witnesses that his reputation for truth and veracity, covering a period of eight years last past, was bad. The court refused to permit this to be done, stating:

“The offer is refused for the reason that the court has heretofore- limited the parties to four impeaching witnesses on each side.”

To this ruling of the court the defendant excepted. The witnesses who had testified that Johnnie Over’s reputation for truth was bad were not in a strict sense impeaching witnesses, the testimony on that point being incidentally brought out during the course of the examination upon the facts and circumstances 'directly at issue.

Ordinarily, it is within the sound discretion of the trial court to limit the number of impeaching witnesses; but this is not always the case. In Green v. Phoenix Mutual Life Insurance Co., 134 Ill. 310, 25 N. E. 583, 10 L. R. A. 576, it was held that a trial judge should not arbitrarily limit the number of witnesses that might be called to establish a fact of controlling importance. In the case of Browder v. State, 30 Tex. App. 614, 18 S. W. 197, the defendant, after introducing four character witnesses in his behalf, was refused permission to introduce several others. It was held that the defendant had a right to prove his own reputation for honesty and truth, notwithstanding the fact that he had already successfully attacked the credibility of one of the state’s witnesses; and that it was error to preclude him from the introduction of additional testimony upon the ground that such testimony was cumulative in character. Limitations as to the number of character witnesses that may be permitted to testify will vary and should be governed by the circumstances in each particular case. In eases where the impeaching testimony relates to witnesses who testify to collateral matters more or less remote, the discretion of the trial judge in limiting the number of such witnesses will not be disturbed; but where, as in this case, the conviction rests wholly upon the testimony of the witness sought to be impeached, and no conviction could be sustained without his testimony, it is, in our judgment, clearly error to limit the number of impeaching witnesses to four. Nothing appears in this record, excepting the remarks of the court before quoted, to indicate that the trial judge had theretofore limited the parties to the introduction of four impeaching witnesses. Possibly this was a previously announced general custom known to the attorneys, but the manner of the announcement in open court, in the presence of the jury, to that' effect, may have operated to the defendant’s prejudice.

It is bad practice for the trial judge, at or before the beginning of the trial, to arbitrarily limit the number of witnesses that may testify to a particular issue. The limitation of the number of witnesses rests with the sound discretion of the court, to be applied in each particular easel as the exigencies of that case may demand. To make an arbitrary rule in advance precludes the exercise of discretion. Williams v. McKee, 98 Tenn. 123, 38 S. W. 727; Larned v. Platt, 26 Ill. App. 278. In the latter case the court said:

“A general rule limiting the number of witnesses to the reputation of a witness for truth and veracity to a particular number in each case excludes the exercise of discretion and is unreasonable.”

In the case of St. Louis, M. & S. Ry. Co. v. Aubuchon, 199 Mo. 352, 97 S. W. 867, 9 L. R. A. (N. S.) 426, 116 Am. St. Rep. 499, 8 Ann. Cas. 822, it was held that the matter of limiting witnesses should be approached with caution. An arbitrary rule allowing but four witnesses to a side in a damage suit, upon the issue of damage or no damage, cannot be defended. There is a great difference between witnesses, however wisely they may be selected. The manner of some may be disappointing; their capacity to tell what they know may have been miscalculated; some may withstand a searching cross-examination, while others may not. Neither court nor counsel have the right to say in advance that justice may be met by an arbitrary assignment of four witnesses to a side on a vitally important controverted question.

There is another apparent weakness in the testimony produced by the state. The prosecuting witnesses at different times owned a large -herd of cattle. They testified that early in the spring of 1917 they purchased 36 head of mixed cattle, from one Perry Spicer, all branded “P. S.” excepting one bull; Spicer testified that he sold them 36 head .of mixed cattle, all branded “P. S.” excepting three, two heifers and one bull. This shows a discrepancy in the testimony as to the brands on the two heifers. ' Now, the prosecuting witnesses did not miss any particular cattle, or any cattle, except that at the fall round-up they could count but 33 head marked with the “P. S.” brand, from which fact they say they concluded that they had lost two head of the cattle purchased from Spicer. But Spicer said that there were but 33 head marked with that brand in the lot he sold the prosecuting witnesses.

It is therefore reasonable to, conclude that these prosecuting witnesses did not lose these two head of cattle at all, and that the cattle charged to have been stolen by the defendant, bearing a “P. S.” brand when found in his possession, were not the property of the prosecuting witnesses, but were cattle purchased from another herd belonging to one Jim Randolph, then deceased, as was claimed by defendant and corroborated to some extent by other witnesses. Upon this point defendant in his motion for a new trial set . ont that he had just been apprised of newly discovered evidence, to the effect that Barney Altman, Frank Blessing, and John Porter were present when Randolph branded a number of cattle, among which were two heifers which were branded “B. S.,” and that these two animals were so branded because they belonged to Barney, the stepson of Randolph. This would have been important competent testimony, supplying a missing link in defendant’s chain of testimony by explaining how the two heifers purchased from Randolph and found in defendant’s possession were marked “B. S.” This motion for a new trial was overruled and an exception taken.

On account of the weakness of the testimony supporting the theory of the state and the showing made that these absent witnesses could probably be procured at a later trial, and upon the diligence shown to procure the testimony which they could offer, considered all together, we think there was a sufficient showing for; the granting of a new trial, and that in fairness to the defendant a new trial should have been granted.

It was shown that the defendant some time previous had been convicted of stealing a saddle; he may have stolen these two heifers, but we think the proof is far from conclusive that he did so.

On account of the insufficient probative force of the state’s evidence, the refusal of the court to permit the further impeachment of the all-important witness, Johnnie Over, and the refusal to grant a new trial on the ground of newly discovered evidence, all considered together, the judgment of the trial court is reversed, and the cause remanded.

MATSON, P. J., and DOYLE, J., concur.


author: DOYLE, J.

text:
    SAM WILLIAMS v. STATE.
    No. A-4336.
    Opinion Filed April 9, 1923.
    (213 Pac. 756.)
    (Syllabus.)
    Appeal and Error — Dismissal and Remand upon Motion of Appellant, Where one perfecting: an appeal from a judgment of conviction moves that it be dismissed, it will be so ordered, and the cause remanded.
    Appeal from County Court, Pittsburg County; S. F. Brown, Judge.
    Sam Williams was convicted of a violation of the prohibition law, and he appeals.
    Appeal dismissed, and cause remanded.
    Wilkinson & 'Hudson, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

Plaintiff in error, Sam Williams, was convicted on an information in which he and one C. S. Grubbs were jointly charged with the possession of about 200 gallons of whisky with the unlawful intent to sell the same, and his punishment fixed at confinement for three months in the county jail and a fine of $100. From the judgment rendered on the verdict on the 24th day of March, 1922, an appeal was perfected by filing in this court on May 12, 1922, a petition in error with ease-made.

Counsel of record for plaintiff in error have filed a motion to dismiss the appeal, which motion also bears the signature of plaintiff in error, duly witnessed.

Where an appeal is perfected from a judgment of conviction, and plaintiff in error, before final submission,, moved that it be dismissed, its dismissal will be ordered. It is therefore adjudged and ordered that' the appeal herein be dismissed, and the cause remanded to the trial court.

MATSON, P.'J., and BESSEY, J., concur.


text:
    E. B. THOMASON v. STATE.
    No. A-4077.
    Opinion Filed April 9, 1923.
    (213 Pac. 756.)
    (Syllabus.)
    Appeal and Error — Abatement of Cause by Death of Appellant. In a criminal prosecution, the purpose of the proceeding being to punish the accused, the action must necessarily abate upon his death, and, where it is made to appear that plaintiff in error has died pending the determination of his appeal, the cause will be abated.
    Appeal from.District Court, Alfalfa County; J. C. Rob-berts, Judge.
    E. B. Thomason was convicted of manslaughter in the first degree, and he appeals.
    Proceedings abated.
    Titus & Talbot, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error, E. B. Thomason, was convicted of manslaughter in the first degree, and his punishment assessed at imprisonment in the penitentiary for a period of 25 years, upon an information charging that in Alfalfa county on the 20th day of November, 1920, he did kill and murder one Joe Jackson by shooting him with a revolver. Prom the judgment rendered on the verdict on the 16th day of March, 1921, an appeal was perfected by filing in this court on September 14, 1921, a petition in error with case-made. Since the appeal was taken and before the final submission of the cause, the plaintiff in error departed this life as shown by the motion of his attorney of record.

In a criminal prosecution, the purpose of the proceedings’ being to punish the accused, the action must necessarily abate upon his death, and, where it is made to appear that the plaintiff in error has died pending the determination of the appeal, the cause will be abated.

It is therefore considered, adjudged, and ordered that the proceedings in the above-entitled cause do abate, with direction to the trial court to enter its appropriate order to that effect.

MATSON, P. J., and BESSEY, J., concur.