text:
    JACOB VANDERSLICE v. STATE.
    No. A-8919.
    March 6, 1936.
    Rehearing Denied April 17, 1936.
    (57 Pac. [2d] 267.)

      Holmes H. Colbert and Embry, Johnson, Crowe & Tolbert, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and ,Sam H. Latti-more, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter for convenience referréd to as the defendant, was convicted of the crime of forgery in the first degree,, in Murray county, and sentenced to be imprisoned in the state penitentiary for a term of seven years.

The information upon which the defendant was charged, omitting the caption and signature, is as follows:

“Now comes Lynn W. Norman, the duly qualified and acting county attorney in and for Murray county, state of Oklahoma, and gives the district court of Murray county and the state of Oklahoma, to know and be informed that Jacob Vanderslice did, in Murray county and in the state of Oklahoma, in the year of our Lord One Thousand Nine Hundred and Thirty-two, and anterior to the presentment hereof, commit the crime of forgery in the first degree in the manner and form as follows, to wit:
“That the said Jacob Vanderslice, did on said day and date and in said county and state, wilfully, unlawfully, and feloniously and fraudulently and with the premeditated design to obtain money by false and fraudulent pretenses, did forge the name of O. W. Montgomery, county treasurer of Murray county, Okla., to a certain warrant No. 5 of school district No. 6, in the amount of flOO in Murray county, Okla,, the same being the Oak Grove school of said county and state, and he the said Jacob Vanderslice did wilfully, unlawfully and feloniously and fraudulently forge the bogus signature as aforesaid for the purpose of showing that said warrant had been registered in the office of the county treasurer of Murray county, Okla., that tbe said Avarrant was made payable to Howard Wagoner, and was purported to bave been issued by said district for services rendered by tbe said Howard Wagoner as teacher of said school; that a copy of said Avarrant is hereto attached, and made a part hereof, that the said-Jacob Vanderslice did wilfully, unlawfully-and feloniously and with the premeditated design to defraud, take said bogus Avarrant and under representations that the same was a valid Avarrant against said school district pass the same to Mrs. B. H. Smith, of Hickory, Okla.; that said warrant is a warrant issued against the public funds of said school district, the same being a subdivision of the state of Oklahoma; that the names of the officers forged are the names of public officials of Murray county, Oklahoma, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state.”

Mrs. B. H. Smith, called as a Avitness for the state, in substance testified as folloAvs:

“I have knoAvn the defendant six or seven years; knew him when he Avas superintendent of the schools of Murray county; in September, 1932, I was teaching school in Hickory township; I have examined state exhibit A. The defendant gave the Avarrant to me in September or October, 1932 — I would not be positive .which.
“It was some time after the date of the warrant; when' I first saw him I believe it Avas here in the courthouse; the warrant Avas given me on a debt of $100, and was to pay the debt of $100 he OAved me; I came to see the defendant to- collect the money, and he said he had the Avar-rant if I was Avilling to take it, and I told him I was; I remember he told me the Avarrant was not payable or was not called, or something to that effect, but if it Avas not called by the first of the year he would take it up; the Avarrant was fully filled out by the names of the members of the school board being attached. I later got the cash from the county treasurer; it seems to me it Avas some time in March, but I would not be positive about that. The county treasurer paid me out of county funds, I suppose; I cannot remember clearly whether the warrant was turned down by the county treasurer’s office, but I got the money; I do not remember who cashed the warrant; I saw the warrant in the county treasurer’s office and I paid the county 'bach the money that was paid to me for it; I had gotten the money from the county on the warrant and I returned it.”

On cross-examination Mrs. Smith testified the defendant owed her money when she got the warrant; that he had been owing her since April, 1932:

“The warrant was delivered to me in the fall of 1932; after the warrant was taken up the defendant paid me the $100 he owed me; at the time he delivered the warrant the defendant did not tell me the warrant was not good, nor did he tell me it was not legal. If he said anything about it being, illegal, I do not remember it.”

Howard Wagoner, testifying on behalf of the state, stated :

“I was teaching school in this county in the fall of 1932, at Oak Grove school; the members of the board were T. C. Roberson, B. F. Frazier, and J. H. Brown; I did not get the warrant marked state exhibit A, purported to have been issued September 3,1932, for $100; it was never offered to me; I got my salary warrant that was due in September, 1932; I do not remember what date it was.
“I wrote my name in the stub of the warrant book for the warrant that was issued to me; the stub shows it was for my September salary; it was general fund warrant No'. 5; amount $100; independent school district No. 6; dated September 2, 1932; issued to Howard Wagoner on account No. 5; department, teachers’ fund; appropriation for $1,800; amount approved for this purpose $450; warrant issued No. 5, $100. This warrant $100, pending claims and contracts $300; total charged against the appropriation $300, unencumbered balance $150; received this warrant this 2d day of September, 1932, signed How: ard Wagoner. This warrant is No. 5; I did not draw the other warrant for teaching prior to this time; Frazier and Eoberson were the members of the school board that signed my warrant; I had nothing to do with the warrant marked state’s exhibit A. There was no money dne me from the school district on September 3, 1932. The defendant, Mr. Yanderslice, was county superintendent at that time, and on the date this warrant purports to have been issued and signed; I did not sign my name on the back of the warrant designated as state exhibit A, nor do I know who wrote it.”

T. C. Eoberson, testifying in behalf of the state, stated:

“I live in Oak Grove district; I was an officer of the school board in 1932; the two other members of the board were B. F. Frazier and J. H. Brown; I was clerk of the school board; I kept the warrant book for the school district; on September 2, 1982, there was a warrant issued to Howard Wagoner for salary, in the sum of $100; the number of the warrant was No. 5; there had been one other warrant issued for Howard Wagoner out of this book before that time; there had been other warrants issued to other parties; we had two teachers in the district at that time; I had nothing to do with the issuing of the warrant shown as state exhibit A. The first time I saw the warrant Mr. Montgomery and Mr. Johnson, the sheriff here, came out and brought it; my name is on the warrant but not my signature; I did not sign it; I never saw the warrant until Mr. Montgomery and Mr. Johnson came to my place with it.”

Mr. Brown signs his name J. H. Brown, but he did not sign the school warrants; they were signed by Mr. Frazier, as director:

“I wrote one, dated September 2, 1932, payable to Howard Wagoner; the warrant, state’s exhibit A, is the form of the warrants that were used in our school district; the warrant is just the -same size as the stub.”

Mrs. Smith was recalled for further examination, and stated:

“At the time the state warrant was turned over to me it had the name of Howard Wagoner on the back of it; it did not have the name of Jacob Vanderslice on it at the time it was delivered to me; I saw the defendant Mr. Vanderslice’s name put on the warrant by the defendant himself; Mr. Montgomery looked at the warrant and stated he could not handle it unless it had Mr. Vander-slice’s signature on it; I took it in to Mr. Vanderslice and he signed it; I then took it back to Mr. Montgomery’s office, and he paid me the money.” On further cross-examination, the witness stated: “We had the defendant write his name on there because Mr. Montgomery said the warrant was no good without the name of the defendant, Mr. Vanderslice; Mr. Montgomery said he could not handle the warrant without the name of Mr. Vanderslice on the warrant.”

B. F. Frazier, testifying on behalf of the state, stated:

“I am the director of Oak Grove school district, and have been ffor two years; I was director in September, 1932; Mr. Roberson and myself signed the warrants for the school district; on September 2, 1932, we issued a warrant, and Mr. Roberson and I signed it; I have seen state exhibit A, and I do' not know anything about the issuing of the warrant, nor did I have anything to do with the warrant.”

On cross-examination he stated Mr. Brown was not supposed to sign any of the warrants; he was a member of the school board:

“I was the director; I do not know whether Mr. Brown signed the state warrant designated as state exhibit A, or not.”

C. M. Mays, testifying on behalf of the state, stated:

“I know the defendant, Mr. Vanderslice. I have examined state exhibit, which you have handed me, and will state that the Mays Lumber Company received it, and gave Mr. Vanderslice credit for it on the books; he had been buying some lumber from the company and gave that warrant to us for credit to apply on the account; at the time the warrant was turned over to me, to the best of my knowledge, the indorsements were on the warrant that are on the warrant at this time.” On ' cross-examination he stated he did not receive the warrant personally from the defendant, but it was placed in his hands by Mr. Leonard; the warrant was filled out in the regular way.

O. W. Montgomery testified he was county treasurer, and had been since July, 1931:

. “I had a warrant registered to Howard Wagoner, dated 9-2-32; the warrant is No. 5; I have warrant No. 1, registered to Howard Wagoner, from the school district which was issued the 6th day of August, 1932; amount of the warrant, $100. I have seen state exhibit A; Mrs. B. H. Smith presented this warrant to me; I do not have the exact date as to when it was paid; the warrant was paid on May 15, 1933; we never did register this warrant; we registered No. 5, the one I have testified to a minute ago. State exhibit A was presented to me by Mrs. Smith; when she presented it, it did not have the indorsement of Jacob Vanderslice, the defendant; I did not see the indorsement put on it, but later it was brought back to me; we paid this warrant and discovered there were two No. 5 warrants that appeared to' have been issued. The defendant sent word to me to come to his office and I went to the officé and he stated, ‘I am worried about these warrants; I put every one of the names on that warrant myself; I will give you a check for this warrant,’ and I told him, no, I would not take his check for it, I was expecting Mrs. Smith to take it up; fit is for you and Mrs. Smith to make it all right’; and he told Mrs. Smith about the same thing; that there had been some little irregularity about the warrant, and he told her he would give her a check for it. Mrs. Smith asked me to go call the bank and see if Mr. Yanderslice had the money, and I said if Mr. Vanderslice wanted me to, and when I called them they said he had the money; I came back and told Mrs. Smith, and he gave Mrs. Smith his check. State exhibit C, warrant No. 7, on school district No. 27, that has been handed to me was not registered in my office; my records do not show any thing with reference to this warrant; I did not pnt my name on state exhibit A, nor did I put my name on state exhibit C.”
Witness further stated that state’s exhibit D, which is warrant No. 33, school district No. 23, payable to Jacob Vanderslice, was never registered in his office. “I did not write my name on the warrant.”

Witness further stated:

“State’s exhibit E, drawn on school district No. 17, warrant No. 18, dated February 18, 1932, was not registered in my office; I did not write my name to that warrant. If the warrant was ever presented to my office for payment I do not remember it. State exhibit P, drawn on school district No. 17, dated December 23, 1931, for the amount of $92, which was warrant No. 10, was registered in my office. This warrant was paid on August 27, 1932, to Park National Bank.”

On cross-examination witness testified he had examined his books and found no record of state exhibit A.

Nadine Talley testified:

“I am assistant county treasurer and have been since July, 1931; I did not sign my name to the warrant designated as state exhibit No. A, nor did I sign O. W. Montgomery’s name to the warrant; when the warrant came in for payment I. noticed the signature, which did not look like mine, and I had my conversation with Mr. Montgomery, the treasurer; I did not have a conversation with Mr. Vanderslice over this warrant; I have seen Mr. Van-derslice sit and write different names for quite a while; I have seen him write my name often; never talked with him excepting about his being; a good penman.”

C. F. Howe, testifying for the state, stated:

“I am tlie clerk of the school board in district 17, and was clerk in December, January, and February, 1931 and 1932. The signature on state exhibit F is my signature; I signed the warrant to the Metropolitan School Supply Company.”

J. H. Hill in substance stated:

“I was the director of the school board in district 17 in 1931 and 1932; I signed my name to state exhibit F; it was issued by the board.”

O. W. Montgomery testified regarding state exhibit F:

“The warrant had been registered in my office; the indorsement O. W. Montgomery, by J. E. Bailey, was properly endorsed, as Mr. Bailey was one of my assistants in the treasurer’s office at the time.”

Victor Leonard, testifying for the state, testified that state exhibit D was turned over to him by the defendant and was applied on the debt the defendant owed the Mays Lumber Company.

The defendant did not take the stand and permitted the question of the forgery of the warrant to be submitted to the jury undenied by him. . He called Oscar Smith, and six other witnesses, who testified as to his previous good character, as being an honest, upright, law-abiding citizen.

The foregoing is in substance the testimony of the state and the defendant.

The defendant has assigned several errors alleged to have been committed by the trial court. The first proposition discussed by the defendant in his second assignment is that the court erred in overruling his demurrer to the information. It is forcibly urged by the defendant that the information upon which he was placed on trial charged two separate and distinct offenses, occurring at different times, and carrying widely different penalties, and that the court committed reversible error in proceeding to trial upon the information; and he urges that the information charged the defendant with the offense of having forged the name of O. W. Montgomery to the school warrant, a public security, and the additional offense of having the intent to defraud, uttered and passed said warrant to Mrs. B. H. Smith, and that the elements of both, offenses are set forth in the information.

An examination of the defendant’s brief discloses that defendant urges evidence was introduced in the trial to prove both offenses, and the court instructed the jury on the evidence necessary to convict on both offenses. With the contention of the defendant that the court instructed the jury on the evidence necessary to convict on both offenses this court cannot agree, as the instructions of the court clearly show that he stressed the question of the forgery and in writing the instructions he practically used the language of the information, but did not instruct the jury on the question of uttering or passing the forged instrument.

Section 2120, O. ,S. 1931, is as follows:

“Every person Avho, with intent to defraud, forges, counterfeits, or falsely alters:
“First. Any certificate or public security, issued or purporting to have been issued under the authority of this state, by virtue of any law thereof, by which certificate or other public security, the payment of any money absolutely or upon any contingency is promised, or the receipt of any money or property acknowledged; or
“Second. Any certificate of any share, right or interest in any public stock created by virtue of any law of this state, issued or purporting to have been issued by any public officer, or any other evidence of any debt or liability, of the people of this state, either absolute or contingent, issued or purporting to have been issued by any public officer; or?
“Third. Any indorsement or other instrument transferring or purporting to transfer the right or interest of any holder of any such certificate, public security, certificate of stock, evidence of debt or liability, or of any person entitled to such right or interest—
“Is guilty of forgery in the first degree.”

Section 2139, O. S. 1931, cited by the defendant in his brief, is the correct statute under which the defendant would be sentenced, if he was tried and convicted on a charge of uttering or passing a forged note, instrument, warrant, etc.

The defendant in his argument relies chiefly on the case of Wells v. Territory, 1 Okla. Cr. 469, 98 Pac. 483, 484, in which case the court said:

“We believe the indictment is bad for duplicity, in charging two distinct offenses in one count; that is, the uttering of the check, knowing it to be forged, and the forging of the indorsement thereon, and then uttering the same. The offenses are distinct, arising upon different acts, and each constitutes the offense of forgery in the second degree.”

The Attorney General in his brief argues that the latter part of the information is a description of the manner in which the defendant committed said crime of forgery, and that portion of the information setting forth that the defendant passed the forged instrument to Mrs. B. H. Smith cannot be intended as a charge or attempted charge of the crime of uttering a forged instrument, and states that two essential elements of such crime were lacking: First, knowledge of the false or forged character of the instrument and consideration; and, second, that the information is wholly insufficient to charge the defendant. with the crime of uttering such forged instrument, and that the defendant could not have been convicted for uttering the instrument.

In Wells v. Territory, supra, the authority upon which the defendant relies to support his contention that there are two separate and distinct offenses described in the information, the court uses this language:

“It is a general rule that when a statute makes it an offense to do some one or another act, naming them dis-junctively,' either of which would constitute one and the same offense, the acts may be charged conjunctively in one count as constituting a single offense, and it has been held that: ‘Where the making and uttering of a fictitious instrument is one continuous transaction, they may be properlv charged in one count as a single offense.’ ” People v. Dole, 122 Cal. 486, 55 Pac. 581, 68 Am. St. Rep. 50; Selby v. State, 161 Ind. 667, 69 N. E. 463; State v. Greenwood, 76 Minn. 207, 78 N. W. 1044, 1117.

The defendant, in support of his contention that the information in this case charges two separate and distinct offenses in one count, in addition to Wells v. Territory, supra, relies upon the following decisions: 16 C. J. 956 § 112; State v. Wood, 13 Minn. 121 (Gil. 112); Ball v. State, 48 Ark. 94, 2 S. W. 462; State v. McCormack, 56 Iowa, 585, 9 N. W. 916, and authorities therein cited.

The question to be determined by this court is the question: Does the information in this case charge the defendant with the commission of two separate and distinct crimes in one count in the information? If it does, the information is bad, and the demurrer of the defendant should have been sustained.

It appears from the record that at the close of the state’s testimony the defendant demurred to the evidence on the ground that the evidence offered on behalf of the state was wholly insufficient to prove the charge of forgery in the first degree, or any other offense against the state of Oklahoma. It is further shown at the close of the testimony, and before the court instructed the jury, the defendant moved the court to instruct the jury to return a verdict of not guilty for the reason that the testimony is wholly insufficient to sustain the allegations in the information. No motion was 'made by the defendant at the close of all the testimony to- require the state to elect the charge it would go to the jury on and ask for a conviction. The court in its instructions in substance recited the allegations in the information and specifically confined the instructions to the crime of forgery in the first degree.

Following the instructions of the court, the jury, by its verdict, found the defendant guilty of forgery in the first degree, as charged in the information. It is not disclosed by the record that there was ever an attempt to charge the offense of uttering a forged instrument, nor does it appear in the record that any evidence was introduced for the purpose of trying to convict the defendant of uttering a forged instrument. The allegations in the information with reference to the passing of the warrant with the name of the county treasurer on it relate to the forging of the instrument and were simply an explanation in support of the essential allegations of an intent to defraud in the commission of forgery. In the case at bar, the defendant was charged with forging the indorsement of the county treasurer on the warrant, and allegations of his passing the same were simply a continuation of the transaction constituting forgery. In Wells v. Territory, supra, the court in part stated:

“Where the making' and uttering of a fictitious instrument is one continuous transaction, they may be properly charged in one count as a single offense.”

In People v. Ellenwood, 119 Cal. 166, 51 Pac. 553, the information contained two counts. The court held that they in fact constituted one count. In the third paragraph of the syllabus, the court said:

“Where an information charging one with making, and passing a fictitious check, with intent to defraud, alleges — First, that the accused made said check upon a certain bank, payable to the order of one R., and signed F., with intent to defraud D.; and, second, that the accused passed said check to said D. with like intent; and it is shown that the making and passing of the check refer to the same instrument and charge the same intent —the making and the passing constitute but one offense, and are properly charged in the information in one count.” State v. Perry, 101 W. Va. 123, 132 S. E. 368, and authorities therein cited.

The statutes in the various states differ, and the decisions must be construed and applied in the light of such statute. Neither the brief of the defendant nor the state cites any case where the court has passed upon an indictment or information drawn exactly in the language used in the information upon which the defendant was tried and convicted.

The court has carefully considered the allegations of the information and authorities cited by both the defendant and the state, and has reached the conclusion that the allegations in the information relate to the same instrument and the same person and constitute part of the same continuous act, and that the court did not err in overruling the demurrer of the defendant to the information.

In arguing the second proposition, the defendant contends the court erred in admitting exhibits C, D, E, and F, over his objection, for the reason that they related to the commission of another crime, and were in no way whatever connected with the charge upon which the defendant was being tried. An examination of the record discloses that these exhibits were introduced to show that just prior to and about the time the charge of forgery upon which the defendant was being tried, had been forged by the defendant. The defendant insists that there is no proof showing the exhibits had been forged by the defendant, and that they were inadmissible against the defendant. With this contention of the defendant that there is no proof showing the exhibits had been forged we cannot agree. The testimony is sufficient to show that the exhibits C, D, E, and F, were in the handwriting of the defendant. The question to be decided is, were the exhibits admissible to show the. motive or intent of the defendant, that he had been systematically forging similar instruments to the one upon which he was being tried?

• The defendant, in support of his contention that the exhibits were inadmissible, cites Quinn v. State, 54 Okla. Cr. 179, 16 Pac. (2d) 591. An examination of that case shows that this court, in the third paragraph of the syllabus, laid down the following, rule:

“Where defendant is on trial for a single offense, evidence of unrelated offenses is not admissible, unless relevant to the issue, and both are so closely linked and connected as to form a part of the res gestae, or tending to establish a systematic scheme or plan embracing the commission of two or more offenses so related to each other that proof of one tends to establish the other, or tending to show motive or intent.”

The exhibits complained of were introduced by the state for the purpose of showing a systematic scheme or plan by the defendant, and to show a motive or intent to forge the instrument upon which he was being tried. Many authorities have been cited by the defendant to sustain his contention that the exhibits complained of were not admissible.

In Reniff v. State, 53 Okla. Cr. 448, 13 Pac. (2d) 592, the court said in part:

“It is also argued that the court erred in admitting testimony of other offenses. There was testimony that defendant at about the same time under similar circumstances passed several other forged checks in the same manner as the check, and for approximately the same amount in this case. This was admitted under the well-settled rule that proof of other offenses of similar character and near in point of time, is relevant and admissible to show a system of criminal action and the knowledge and intent of the accused and to show the act charged was not an inadvertence. The testimony was clearly competent, State v. Rule, 11 Okla. Cr. 237, 144 Pac. 807; Harrell v. State, 43 Okla. Cr. 278, 278 Pac. 404; Carmichael v. State, 44 Okla. Cr. 160, 279 Pac. 515.”

The defendant, in support of his contention that the exhibits complained of were inadmissible, refers to Appleby v. State, 11 Okla. Cr. 284, 146 Pac. 228, in which the court said:

“The general rule is that, when a defendant is put upon trial for an offense, he is to be convicted, if at all, by evidence, which shows that he is guilty of that offense, and proof of his guilt of other offenses is incompetent and inadmissible, except for the purpose of showing intent, motive, or guilty knowledge.” Smith v. State, 14 Okla. Cr. 348, 171 Pac. 431.

Exhibits C, D, E, and P are admissible, as they tend to show guilty knowledge or intent on the part of the defendant in the commission of the offense charged, and tend to establish a scheme or plan embracing the commission of similar offenses so closely related to each other that proof of one tends to connect, the defendant with the commission of the other.

It is next urged by the defendant that the venue of the action was not established in Murray county. We think the testimony of Mrs. Smith and other witnesses who testified in the ease, as well as all the circumstances surrounding the handling of the warrant to show the offense was committed in Murray county, and that the contention of the defendant that venue was not shown is without merit.

The fourth and last proposition discussed by the defendant is set forth in his motion and amended motion for a new trial, in which he alleged that a certain juror who sat in the trial of his case was biased and prejudiced against him prior to the trial and prevented him from having a fair and impartial trial. The motion and amended motion for a new trial was considered by the court and overruled, and defendant excepted.

The examination of the jurors on their voir dire is not included in the record, and this court cannot say what answers the jurors gave when examined as to their qualifications. So far as the record shows, no objection was made to the jurors or any one of them at the time the jurors were called and examined as to their qualifications. The record fails to show that the jurors were questioned as to their bias or prejudice against the defendant.

In Horton v. State, 10 Okla. Cr. 294, 136 Pac. 177, this court said:

“Where a defendant accepts a juror without availing himself of the right to examine such juror on voir dire, or without availing himself of the right to challenge him for cause, he will not * * * be allowed to make the objection that the juror has formed and expressed an opinion adverse to him, as a ground for a new trial.”

In Dixon v. State, 56 Okla. Cr. 454, 42 Pac. (2d) 286, this court reaffirmed the doctrine laid down in Horton v. State, supra. The court carefully considered the motion and amended motion of the defendant for a new trial and overruled the same.

In Allen v. State, 49 Okla. Cr. 195, 293 Pac. 271, in the first paragraph of the syllabus, this court stated:

“A motion for a new trial is addressed to the sound discretion of the trial court; and, unless it affirmatively appears from the record that the trial court abused its discretion, a new trial will not be granted.” Adams v. State, 43 Okla. Cr. 179, 277 Pac. 688.

In Smith v. State, 19 Okla. Cr. 14, 197 Pac. 514, in the first paragraph of the syllabus, this court said:

“Where a new trial is asked for upon the grounds that a juror who served upon the jury was prejudiced against the defendant, which prejudice was unknown to the defendant prior to rendition of the verdict, to entitle the defendant to a new trial, it must not only be shown that the said juror was prejudiced, but it must also appear that the defendant suffered an injustice by reason of the said juror having served upon the said jury.”

It has been uniformly held by this court that on matters of discretion the decision of the trial court will not be set aside unless there appears to have been a manifest abuse of the discretion thereof. Spradlin v. State, 13 Okla. Cr. 376, 164 Pac. 990; Bethel v. State, 8 Okla. Cr. 61, 126 Pac. 698.

From the record before us, we cannot say, therefore, that there was a manifest abuse of discretion in overruling the motion and amended motion for a new trial such as should result in a reversal of this judgment of conviction. The record has been carefully read and studied by this court, and all of the assignment of errors that it is considered necessary to discuss have been discussed.

There are no errors sufficient to warrant a reversal. The defendant was accorded a fair and impartial trial. The defendant offered no evidence to show that the forging of the name of O. W. Montgomery to the warrant Avas not done for the purpose of passing the warrant as a good and valid warrant. The Avarrant on its face shoAved it to have been regularly issued. No explanation is given by the defendant as to why he signed the name of the officers to this warrant. The school warrant book shows that a warrant for the salary of the teacher had been issued one day prior to the day this forged warrant was dated. The court correctly advised the jury as to the law applicable to the facts.

There being no errors in the record sufficient to warrant a reversal, the judgment is affirmed.

EDWARDS, P. J., and DOYLE, J., concur.


source: Caselaw Access Project

author: EDWARDS, P. J.

license: Public Domain

text:
    B. M. SHANKS v. STATE.
    No. A-8997.
    April 17, 1936.
    (56 Pac. [2d] 1199.)

      Hill & Hill and Long & Presson, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Seminole county of- having unlawful possession of intoxicating liquor and was sentenced to pay a fine of $300 and to serve 60 days in the county jail. Officers with a search warrant made a search of the residence of defendant and found 52 gallons of whisky. Defendant did not take the stand and offered no testimony. The only contentions made relate to the validity of the affidavit for search warrant and the search warrant. Before trial defendant moved to suppress the evidence and supported this motion by testimony. The motion was overruled. The affidavit is not in the record but the search warrant was introduced. It is regular on its face and authorizes search of a three-room house, occupied by defendant, located at 12 South Timmons street, Seminole City. It is argued that the affidavit was made on information, but since the affidavit was not introduced, the contention is not supported by the record. The objection made to the search warrant is that the house searched is not at 12 “South” Timmons, but at 12 Timmons street. Upon this point defendant, in support of his motion, testified:

“Q. Where did you live then? A. Twelve Timmons. Q. Did you live at Twelve South Timmons street? A. No, sir.”

It appears the place was south of Broadway and that it was usual to refer to property south of Broadway as being south and that north of Broadway as north. But as a matter of plat description there is only one 12 Tim-mons street and that was the place searched.

Section 30, art. 2, Okla. Const., and section 2638, Okla. Stat. 1931, require that a search warrant shall describe the place to be searched as particularly as may be. This court in numerous cases has held the description must be such that no discretion is left to the officer, but that the place must be determined from the search warrant itself. This requirement is met by the search warrant here. The description is redundant and to that extent technically incorrect in using the word “South”; but since there is no other number 12 on Timmons street with which it could be confused, the error of description is immaterial.

The case is affirmed.

DAVENPORT and DOYLE, JJ., concur.


author: DOYLE, J.

text:
    OTT BANKER v. STATE.
    No. A-9012.
    April 18, 1936.
    (56 Pac. [2d] 1205.)
    Meacham, Meacham & Meacham, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case filed in the district court of Custer county, February 13, 193'3, charged that W. D. McCombs, Doc Thomas, and Ott Banker, did in said county on or about the 11th day of January, 1933, commit the crime of assault and battery with a deadly weapon, towit, a razor, with intent to kill one Dennie Dexter.

The record shows that defendant R. D. McCombs pleaded guilty, and after serving time was released from the penitentiary some time in December, 1934, and that defendant Doc Thomas upon his separate trial was acquitted.

Upon appellant’s trial, the jury returned a verdict finding “the defendant, Ott Banker, guilty of assault and battery with a dangerous weapon, without justifiable or excusable cause with intent to do bodily harm, although without intent to kill, as charged in the information, and are unable to agree upon the punishment. However, if possible under the law, ask the court to show leniency in passing sentence.”

On the 17th day of April, 1935, after motion for a new trial had been filed and overruled, the court rendered judgment and he was sentenced to imprisonment in the state penitentiary for a term of 15 months. To reverse the judgment he appeals.

Frank Sturgis testified:

“I was at Harry’s Cafe, and I saw there was something going on at Dexter’s Cafe, down about the middle of the block, I saw R. D. McCombs come out, I walked down there and just as I walked in Doc Thomas had hold of Dennie Dexter, when he turned his head I saw blood, Dennie said, ‘Frank, don’t let that fellow get away, he cut me with a razor.’ ”

W. S. Currell testified:

“My place of business is two blocks east of Dexter’s Cafe. I saw E. D. McCombs, Dock Thomas and Ott Banker there, E. D. McCombs said, ‘Give me a razor,’ but I did not see anybody give him a razor. That Banker held Dennie’s head while McCombs cut him.”

Clayton Bingenheimer testified:

“I went down there and Dennie was having trouble with Doc Thomas, trying to put him out of the restaurant, and Banker was kinda over against the east wall, I turned around and walked back to Harry’s Cafe to call the law, as I came back Doc was crossing the street and there was another fellow over there. Dennie said, ‘There goes the fellow' that cut me.’ The fellow he pointed out was E. D. McCombs.”

Ida Bingenheimer testified:

“I have a confectionary first door east of Dexter’s Cafe, I heard a racket in the cafe and followed my son. Ott Banker was standing on the sidewalk, when he saw me he ran, Doc Thomas was in the restaurant scuffling with Dennie, and Dennie was trying to put him out. Then I saw Doc Thomas run down the street.”

Frank Eussell testified:

“I was going west up Frisco, I saw T. B. George come out of this place and run across the street, when I got up to the cafe Dennie Dexter and Doc. Thomas were fighting, Dexter finally threw him out of the cafe and pushed out Banker and McCombs and maybe another one, they asked him to go back in and they went back in and the rowing started again, I walked up to Harry’s Cafe to find a policeman, there was no one there, so I went back and Dennie threw him out again. Ott Banker slipped the McCombs boy a razor and I went back to Harry’s Cafe and asked the girl there to call the police office and tell them to send some one down there to stop the fight, when I came back down there Dennie Dexter’s neck had been cut.”'

The complaining witness, Dennie Dexter, was not called as a witness.

The defendant, as a witness in his own behalf, testified:

“I was sitting in my car in front of Dexter’s Cafe, R. D. McCombs came along and went into the restaurant. An argument started in there and I got out and went to the door, Doc Thomas and T. B. George got into a scrap, Dennie asked me to help take them out of there and I did. Dennie said, 'Come and get him, I am going to hit him,’ and Dennie had a pop bottle in his hand, I took him and shoved Mm out of the door and I said, 'Doc, don’t gO' back in there.’ R. D. McCombs lives in Oklahoma City. The day before I saw him about Dennie’s place all doped up on whisky. I did not have a razor any time that evening and didn’t hand R. D. McCombs or anybody a razor, I didn’t see a razor there that evening. Dennie came out and I said, 'Dennie, get in the car and I’ll take you to the hospital,’ and Clayton Bingenheimer said, ‘No, I will take him,’ and I sat around there until Edd Phelps arrested me. I never at any time had hold of Dennie Dexter, the only time I touched Mm was when I took the pop bottle out of his hand to keep him from hitting Doc with it. Doc Thomas was drunk and R. D. McCombs was crazy drunk.”

The record shows that after the jury retired to deliberate upon its verdict the foreman sent to the court a note which reads:

“Is it within our power to assess a sentence and at the same time ask the Court to suspend the sentence?
“J. H. Hooks, Foreman.”

Whereupon the court sent to the jury the following statement: “You are instructed that under the law of this state a suspended sentence can not be given a person convicted of a crime if he is more than 21 years of age.”

The principal assignment of error, relied upon for a reversal of the judgment, is that the trial court erred in overruling the application for a continuance.

When the case was called for trial the defendant filed the following motion for a continuance:

“Comes now the defendant, Ott Banker and moves the court to continue this case for this term for the reason that a witness of the defendant, R. D. McCombs, is not in attendance on the court and not here where he can be used as a witness of the defendant, that said witness has been duly subpoenaed; that said witness if present would testify that the defendant Ott Banker never at any time had the razor with which said witness cut Dennie Dexter; that said witness would further testify that said razor was his own personal property, and that the same had not been in the possession of the defendant, Ott Banker, at any time and that said witness would further testify that said Ott Banker never at any time handed him a razor of any kind; said defendant further shows to the court that said witness was subpoenaed to testify in this case at the last term or the last session of this court, which said last session was on the 4th of March, 1935, that said witness appeared here ready to testify; that said witness was subpoenaed at this time in the same manner and place as he was subpoenaed at this last said session, and the defendant further shows the court if this case was continued for the time that he would be able to have said witness present to testify in this case.
“Defendant now asks the court and states that he is ready to offer evidence to prove these things set out in this motion.”

The defendant in support of this motion called Miss Lauriena King, court clerk of Custer county, who identified exhibits 1 and 3, admitted in evidence, which were subpoenas on which there were orders signed by the district judge, requiring the attendance of the witness, R. D. Mc-Combs, who resides at 116 West Reno, Oklahoma City, and showing that service was obtained on the 6th day of March, 1935, by Stanley Rogers, sheriff of Oklahoma county; that one of said subpoenas issued on the 2d day of March, 1935, and in response to said subpoena the witness R. D. McCombs was in attendance in said court; that the case was not reached and was reset for trial in April, at which time the continuance in question was asked; the other subpoena was issued to secure the attendance of said witness at the time the continuance in question was asked.

A. H. Meaeham testified in part as follows:

“I want to further state that I talked to It. D. Mc-Combs when he was here the last session of this court and he stated to me that he would testify to the things set out in this motion.
“The Court: I am just inclined to feel that it fails to show due diligene in getting the witness here. The motion for continuance will be overruled. Exception reserved.”

Section 3018, Procedure Criminal (St. 1931) provides as follows:

“Every witness summoned in a criminal action pending in a district, superior or county court shall take notice of the postponements and continuances and when once summoned in such action shall, without further notice or summons, be in attendance upon such action, as such witness, until discharged by the court.”

Under this provision no subpoena was necessary for the witness at the time in question, because he had been duly subpoenaed and was in attendance in court. Said subpoena ordered as follows:

“You are commanded to appear before the district court of the county of Custer, state of Oklahoma, at Arapahoe, on the 11th day of March, 1935, at the hour of 9 o^clock a. m. of said day, and remain in attendance on and call of said court from day to day and term to term until lawfully discharged as a witness in a criminal action prosecuted by tbe state of Oklahoma, against R. D. McCombs, Ott Banker and Doc Thomas, on behalf of the defendant.”

Ordinarily, the granting or refusing of a continuance is in the discretion of the court, and its decision will not be disturbed on appeal, unless it appears that there has been an abuse of such discretion. However, a continuance ought always to be granted when, from the showing, justice requires it to be done, and to enable a defendant to procure all competent evidence necessary for his defense, if he has used due diligence to obtain the same. Technical objection should not ordinarily prevent the granting of a continuance, if it appears necessary to a proper presentation of defendant’s case.

Upon the record before us we are inclined to think that the trial court exceeded its discretionary power in refusing to grant the continuance. The application conforms to the requirements of the statute, and the diligence to procure the attendance of the absent witness, R. D. McCombs, was sufficient. For this reason, the court was in error in finding that the application fails to show due diligence to secure the attendance of said witness.

When an application for a continuance has been denied, this court will look to the entire record with a view of determining whether or not an abuse of discretion is shown.

The only witness who testified to the facts alleged in the application was the defendant himself, and the testimony of the absent witness was material to his defense, and it reasonably appears that the attendance of said witness could be secured by a continuance.

Speedy trials for the prompt enforcement of criminal laws, however desirable, should only obtain with due regard for the rights of the accused, to enable him to have a fair trial.

We think that in this case it was manifest error to refuse a continuance.

Other assignments of error go to matters which we deem unlikely to occur in the event of another trial.

For the reasons stated, the judgment is reversed.

EDWARDS, P. J., and DAVENPORT, J., concur.


text:
    STATE ex rel. ATTORNEY GENERAL v. HURST, District Judge.
    No. A-9114.
    April 20, 1936.
    (57 Pac. [2d] 666.)

      Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more and Jess L. Pullen, Asst. Attys. Gen., for the State.
    0. B. Stuart, A. Flint Moss, 0. A. Coakley, McCollum & McCullom, H. R. Young, R. B. McDermott, and Thos. H. Owen, for defendant Phil Kennamer.
   DOYLE, J.

The state of Oklahoma, on the relation of Mae Q. Williamson, Attorney General, has filed in this court a petition for writ of prohibition restraining and prohibiting the respondent, Thurman S. Hurst, as judge of the district court of Pawnee county, Okla., from further proceeding in the matter of a petition for a new trial filed in said court in cause Nó. 1784, entitled State of Oklahoma, Plaintiff, v. Phil Kennamer, Defendant, an 1 in support of said petition for writ of prohibition avers:

“1. That at the January 1935 Term of said district court in Pawnee county and upon the 25th day of February, 1935, the said Phil Kennamer, defendant in said cause No. 1784, was duly found guilty of manslaughter and sentenced to serve a term of twenty-five (25) years in the state penitentiary as punishment therefor.
“2. That an appeal was duly taken from such judgment and sentence to this court and that said conviction and sentence has been by this said court duly affirmed.
“3. That there has now been filed in said cause No. 1784 in the district court of Pawnee county, Oklahoma, by the said defendant Phil Kennamer a purported petition for new trial praying that said judgment and sentence so pronounced against him on February 25, 193'5, and affirmed by this court be set aside and a new trial granted upon the ground of newly discovered evidence and other alleged grounds set forth in said petition for new trial. That said petition for a new trial was filed in said court after the expiration of the next succeeding term after the said conviction and sentence of such defendant and after said judgment had been duly affirmed by this court.
“4. That said district court is wholly without jurisdiction to hear and pass upon said petition for a new trial or to grant the relief prayed for therein, but that unless prohibited by this court said respondent will proceed to hear and determine the said petition for new trial; that said petition for new trial has been filed simply for the purpose of further delaying the execution of said judgment and sentence of said district court and the order of this court affirming the same.
“Wherefore, premises considered, petitioner prays that this Honorable Court issue a writ of prohibition restraining and prohibiting the said district court of Pawnee county, Okla., and the said Honorable Thurman S. Hurst, district judge, from in any manner undertaking to hear and act upon or proceeding further with said petition for new trial or taking any further action in said case of State of Oklahoma v. Phil Kennamer, except in execution of said judgment and the mandate of this court affirming the same.”

Upon the filing of the petition an alternative writ of prohibition was issued.

It is contended by counsel for the defendant, Ken-namer, that said district court has jurisdiction to entertain said petition for a new-trial, in that it is a petition for a writ of error coram nobis and comes within the provisions of section 2665, ,St. 1931, Procedure Criminal, providing that:

“The procedure, practice and pleadings in the courts of record of this state, in criminal actions or in matters of criminal nature, not specifically provided for in this code, shall be in accordance with the procedure, practice and pleadings of the common law” — citing the case of State ex rel. v. Swindall, 33 Okla. Cr. 210, 241 Pac. 456, 458, wherein this court said:
“From the provisions of this statute we see no reason why in a proper case resort to this writ may not be had.”

The defendant, Phil Kennamer, was tried and convicted in the district court of Pawnee county upon an information charging him with murder. The jury rendered a verdict of guilty of manslaughter in the first degree, and, a motion for new trial having been made and denied, he was sentenced to imprisonment in the state penitentiary for a term of 25 years. Upon appeal to this court, the judgment was affirmed March 13, 1936. Kennamer v. State, 59 Okla. Cr. 146, 57 Pac. (2d) 646.

His petition for a rehearing in said cause wherein the judgment of the district court of Pawnee'county was affirmed was filed in this court April 11th.

The petition is very lengthy, consisting of over 15 pages of closely typewritten matter, and concludes as fol-Ioavs : “Petitioner further avers that he has tendered the District Court of Pawnee County a petition seeking correction of its judgment upon the same grounds and causes as are exhibited herein, but that this petition is tendered to invoke the paramount jurisdiction of this court over the records and judgments in all causes of criminal cognizance, and to prevent grave miscarriage of justice in the wrongful deprivation of this petitioner’s liberty.”

It is averred in said petition:

“That the matters and errors of fact hereinafter complained of came to the attention of himself and his attorney after the date of the trial and judgment, and subsequent to the time allowed by statute for the correction of said judgment upon motion, and that this petitioner and his attorneys of record could not, with reasonable diligence, have presented said matters of fact and the frauds, hereinafter complained of, to the court at the trial and before judgment, or within the term allowed for correction of said judgment upon motion.
“That the said judgment and sentence are founded upon the following essential premises of fact, which are. hereby charged to be false:
“(1) That the homicide upon which the conviction is founded was not accomplished by the defendant in the necessary defense of his life.
“(2) That the defendant was the procuring cause of the plot and situation out of which the conflict arose that ended in the death of John Gorrell.
“ (3) That the evidence upon which the defendant was convicted was heard, considered, and resolved to an unbiased verdict at the hands of twelve impartial and unprejudiced jurors; who received the evidence with open minds; and, unaffected by any preconception of the facts, or any prejudice against the defendant, or any opinion of the guilt or innocence of said defendant, resolved the disputed issues against this petitioner upon the sole consideration of the evidence adduced at the trial.
“(4) That the defendant provoked the quarrel in which the deceased John Gorrell was killed.
“(5) That the prosecution, upon behalf of the state, was fairly conducted; and presented all competent and material evidence concerning said homicide, which was available and known to the prosecution; and that said prosecution was conducted in good faith, without tincture of fraud in the procurement and production of evidence, nor in the argument of the cause to said jury.
“Petitioner respectfully avers that each of the foregoing premises of fact is essential to a valid conviction in this cause; that each of said premises is false and an erroneous subject of said judgment; and that if each, any or all of said premises had been shown to be false at the trial of this case, or if this petitioner, by circumstances unavailable tO' him at the trial, had been able to demonstrate the true facts in each, any and all of said respects, then the judgment of conviction could not have been entered, and the verdict of the jury would not have been a verdict of guilty.”

It further avers newly discovered evidence as shown by photostatic copies of writings attached as exhibits, A, purporting to be the address on an envelope, “Mr. Stephen Agustus Wright, Jr. Canton, 111”; B, a letter signed Jeff; C, another letter signed Jeff Gorrell, together with the unverified statement of said Wright that he received said letters from the deceased.

It is also averred that one of the jurors, Raymond Allen, had formed and expressed an opinion as to the guilt of the defendant prior to his having been accepted and sworn as a juror in the case.

Counsel for the state do not in their brief or argument controvert the right to a writ of error coram nobis in a proper case.

The writ of coram nobis and all proceedings in the nature of that ancient writ, having in view the setting aside of a final judgment of a court of competent jurisdiction, are very much limited in efficacy in jurisdictions such as ours, having statutory provisions regulating procedure granting new trials. This is especially true where the statutes, such as ours, provide for and regulate the granting of new trials upon the ground of newly discovered evidence.

Our Code of Criminal Procedure (St. 1931, §§ 3120, 3121) provides as follows:

“3120. A court in which a trial has been had upon an issue of fact has power to grant a new trial when a verdict has been rendered against a defendant by which his substantial rights have been prejudiced, upon his application in the following cases only: * * * Seventh. When new evidence is discovered, material to the defendant, and which he could not with reasonable diligence have discovered before the trial.”
“3121. The application for a new trial must be made before judgment is entered; but the court or judge thereof may for good cause shown allow such application to be made at any time within thirty days after the entry of the judgment. A motion for a new trial on the ground of neAvly discovered eAfidence may be made after judgment at the term at Avhich the case was tried, or in vacation, before the judge or at the next term of court.”

In so far as this petition seeks the setting aside of the judgment of conviction upon the ground of newly discovered evidence touching the merits of the case in which that judgment was rendered, it manifestly comes too late, since it was filed in said court after the expiration of the next succeeding term after the term said judgment was entered.

The functions of the writ of error coram nobis are strictly limited to the correction of errors of fact for which the statute provides no other remedy, and which facts do not appear of record or were unknown to the court at the time of pronouncing judgment, and which, if known, would have prevented the judgment, and which were unknown and could not, by the exercise of reasonable diligence, have been known to the defendant in time to have been otherwise presented to the court, unless he was prevented in so doing by duress or fear or other sufficient cause. Alex ander v. State, 29 Wyo. 241, 123 Pac. 68, Ann. Cas. 1915A, 1282; State ex rel. v. Swindall, supra; People v. Reid, 195 Cal. 249, 232 Pac. 457, 36 A. L. R. 1435; People v. Paysen, 123 Cal. App. 396, 11 Pac. (2d) 431.

Judge Freeman, discussing the office of this writ in Freeman on Judgments, par. 94, says:

“This writ does not lie to correct any error in the judgment of the court, nor to contradict or put in issue any fact directly passed upon and affirmed by the judgment itself. If this could be, there would be no end to litigation.
“The writ of error coram nobis is not intended to authorize any court to review and revise its opinions; but only to enable it to recall some adjudication made while some fact existed which, if before the court, would have prevented the rendition of the judgment, and which, without any fault or negligence of the party, was not presented to the court.”

It has been said that the writ of error coram nobis will hot be granted except where it clearly appears that the petitioner had a valid defense in the facts of the case.

In Sanders v. State, 85 Ind. 318, 44 Am. Rep. 29, the court said:

“It is our opinion that the courts have the power to issue writs in the nature of the writ coram nobis, but that the writ can not be so comprehensive as at common law, for remedies are given by our statute which did not exist at common law — the motion for a new trial and the right of appeal — and these very materially abridge the office and functions of the old writ. These afford an accused ample opportunity to present for review questions of fact, arising upon or prior to the trial, as well as questions of law; while at common law the writ of error allowed him to present to the appellate court only questions of law. Under our system all matters of fact reviewable by appeal, or upon motion, must be presented by motion for a new trial, and can not be made the grounds of an application for the writ coram nobis. Within this rule must fall the defense of insanity as well as all other defenses existing at the time of commission of the crime. Within this rule, too, must fall all cases of accident and surprise, of verdicts against evidence, of newly discovered evidence, and all lite matters.”

In Stephenson v. State, 205 Ind. 141, 179 N. E. 633, 186 N. E. 293, 295, it is said:

“The writ will reach only matters not cognizable on motion for new trial, or in arrest of judgment, or on appeal. It represents that justice has been circumvented, and that in effect a fraud has been perpetrated upon the court that entered the judgment. The only relief that can be granted is the setting aside of the judgment and the granting of a new; trial.”

A writ of error coram nobis will not lie from a conviction in a felony case because one or more of the jurors on his or their voir dire swore falsely concerning his or their qualifications as jurors, although discovery of such perjury was not made until after conviction. State v. Choquette, 109 Kan. 780, 202 Pac. 68; People v. Reid, supra; State v. Armstrong, 41 Wash. 601, 84 Pac. 584.

Such assailment of the integrity of the jury was not within the scope of the office of the writ. Fugate v. State, 85 Miss. 94, 37 So. 554, 107 Am. St. Rep. 268, 3 Ann. Cas. 326.

In the case of State v. Stanfield, District Judge, 11 Okla. Cr. 147, 143 Pac. 519, 521, this court held:

“In a criminal action after final judgment has been entered and the term has expired the trial court has no authority to entertain a motion for new trial, unless the motion is made under the provisions of section 5938, Rev. Laws 1910 (section 3121, St. 1931), which provides that ‘a motion for a new trial on the ground of newly discovered evidence may be made after judgment at the term in which the case was tried, or in vacation, before the judge, or at the next term of court,’ and so where a district judge entertains a motion for and grants a new trial upon a motion made at the next term after the judgment was entered, which motion was made on the ground of misconduct of the jury, the motion was insufficient to give the court or judge thereof jurisdiction to make an order vacating the judgment and granting a new trial, and upon the state’s application for a writ of prohibition, the writ will be awarded, prohibiting further proceeding except that necessary to carry the judgment and sentence into execution.”

Upon the record before us, and for the rensons stated, we are of opinion that the petition for the writ of coram nobis was insufficient to confer jurisdiction on the district court of Pawnee county to entertain the same.

After a very careful examination of this case, both as to the law and the evidence, we have failed to discover anything whereof the defendant has just right to complain.

It may be the law is confessedly tender of the rights of persons accused of crime; however, it is hardly subject to the charge of authorizing them to build up a theory of innocence upon unfounded, fictitious^ or fraudulent assumptions.

It appearing that this is a proper case for the exercise of the powers of this court to grant a writ of prohibition, it is ordered that the writ issue as prayed, prohibiting the respondent, Hon. Thurman S. Hurst, as district judge of the district court of Pawnee county, from further proceeding in the case in said court entitled State of Oklahoma v. Phil Kennamer, Defendant.

The clerk of the district court of Pawnee county is directed to issue forthwith to the sheriff of said county a commitment in accordance with the judgment of the court as pronounced and entered on the verdict of the jury.

EDWARDS, P. J., and DAVENPORT, J., concur.


author: PER CURIAM.

text:
    WALTER WIMBERLY v. STATE.
    No. A-8993.
    April 24, 1936.
    (57 Pac. [2d] 277.)
    J. N. Roberson, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Canadian county of unlawful possession of intoxicating liquor and was sentenced to pay a fine of $75 and to serve 30 days in the county jail. Judgment was entered on July 1,1935, at which time defendant was given 30 days in which to make and serve case-made. Thereafter further extension of time to make and serve case-made was made by the county judge, but no order extending the time in which to file appeal was made at any time. The appeal was lodged in this court on September 13th. In misdemeanor cases the appeal must be taken within 60 days after the judgment is entered, unless the court, for good cause shown, extends the time not to exceed 60 days additional. Section 3192, Okla. Stat. 1931. Logan v. State, 51 Okla. Cr. 448, 3 Pac. (2d) 748.

The case-made not having been filed in this court until after the expiration of 60 days, the appeal comes too late, and this court does not acquire jurisdiction.

The attempted appeal is dismissed.


text:
    W. LESTER SCOTT v. STATE.
    No. A-8959.
    May 1, 1936.
    (57 Pac. [2d] 639.)

      Billingsley & Kennerly, Anglin & Stevenson, and Vernon Roberts, for plaintiff in error.

      Mac Q. Williamson, Atty. Gen., and Jess L. Pullen. Asst. Atty. Gen., for the State.
   DOYLE, J.

The plaintiff in error, hereinafter called the defendant, was convicted in the district court of Seminole county of the murder of his wife, Willie Scott, alleged to have been committed in said county on the 8th day of November, .1931, and his punishment fixed at life imprisonment in the state penitentiary. From the judgment rendered April 29, 1935, in conformity with the verdict of the jury, he appeals. The alleged errors relied on are that the county attorney in his opening statement made remarks prejudicial to the defendant; error of the court in its rulings on the admission of evidence; error in giving instruction No. 8; and that the evidence is insufficient to support the verdict.

The evidence shows that on the night of the 8th day of November, 1931, the Frisco passenger train south out of Sasakwa, after going a little less than two miles, ran into a Ford car on a highway crossing; the. car lodged on the engine pilot. The train was stopped within 200 yards from the crossing and the engineer, Barney Mc-Cook, the fireman, J. E. Bryan, the conductor, E. L. Workman, and the train porter went forward and found in the car the dead body of a woman, dressed in pajamas, a white sweater, a white cap on the head, and slippers on the feet. The body was cold and stiff. This train arrived there between 1 and 2 o’clock in the morning; the train was backed to Sasakwa, there the train crew notified citizens of the fact that they had found this body. Officials at Sasakwa, a justice of the peace and a deputy sheriff and several others came to where the body was in the wrecked car and held a coroner’s inquest. It appears that: the skull had been fractured in several places, several of the front teeth knocked out, jaw fractured, and that a blunt instrument had been used to inflict the injuries; there were also fractures on the right arm, and bruises on the body, and the great toe of the left foot was gone.

Jerome Chambers, justice of the peace, and Charles Lyon, deputy sheriff, then took up the trail of the Ford car at the crossing and followed it to an old vacant farm house, on what is known as the “Jim Taylor place,” a little less than three miles north and east of the railroad crossing in Seminole county. There they found in the yard an old mattress which was blood soaked and under it there was a pool of blood. They also found some gold dental bridge work. They followed the trail from the old house to the home of the defendant about seven miles north and east of said railroad crossing. The defendant was at his home. They asked him where his wife was. He said:

“When I left here yesterday evening about dark she was talking of going to Holdenville to her mother’s, I went over to Ernest Tidwell’s and stayed all night, when I got back this morning she was not here.”

It appears that the defendant was the intended beneficiary of two insurance policies upon the life of his wife. One “Automobile Travel,” while operating, driving, riding in, adjusting, or cranking an automobile, in the event of death, $1,000; also a $2,000 policy, maximum benefit $4,000 in case of travel accident death, both policies being in full force and effect on the 8th day of November, 1931, and that the defendant had knowledge of the fact of their existence.

It appears that Mabel Clour and Ernest Tidwell were also arrested at the time and held for a short time. Following the preliminary examination, the defendant was released on bail. Upon his release he went to the home of Mrs. Moore, mother of the deceased, was invited in, and there stated that he knew how his wife* Willie Scott, Was killed He said:

“She was not killed with a gun, she was killed with a car crank. She ran around the house and as she came around they hit her once. She threw her hands in the air and ran towards the car and fell near the car, and they beat her to death there.”

And further stated: “I have got to kill the testimony of Mabel Clour or I am good for the electric chair.” The statements were made to Mrs. Moore, mother of the deceased, in the presence of Beulah Palmer, a sister of the deceased; that the day following his arrest the defendant and Mabel Clour, while in the county attorney’s office and in the presence of the county attorney and Roland Robertson, evidence man, the defendant told Mabel Clour to keep her mouth shut and not to get scared too easily.

The evidence shows that on the 16th day of February, 1932, the defendant and Mabel Clour were married at McAlester.

The defendant did not offer himself as a witness, but undertook to show by the testimony of several witnesses that he was at the home of Ernest Tidwell the night his wife was murdered.

Effie Tidwell testified that she remembered the occasion of hearing about the death of the defendant’s wife; that she saw the defendant at her house about 8 o’clock; that there were three rooms in her house; that she slept in the middle room that night with her children; that the defendant first came in the middle room and talked to her husband about three or four hours, saying that he came there to meet Mabel Clour; that Mabel did not come over there that night; that the defendant went to bed in the south room that night, and left the next morning just before daybreak.

Ernest Tidwell testified that he saw the defendant that night at his home; that he had retired for the night; that the defendant called to him and he got up and invited him in the house; that the defendant replied he “reckoned he did not have time,” that the defendant told him that he had come over to meet Mabel Clour; that they sat up in the house and talked and went to bed about 12 or 12:30 o’clock; that the defendant slept in the south room; that he did not know whether or not the defendant left the house after he got there; that it was 6 2/4 of a mile from his house to Sasakwa.; that the defendant was his landlord before he moved to his present home; that the defendant had never spent a night before at his place; that there was an outside door to the south room.

Ira Abbott testified that he lived about three miles south of Spaulding; that he had known the defendant’s wife quite a while; that he saw her that night about one mile south and one mile east of the defendant’s home; that witness was taking some chickens to Sentinel, Okla., and had left home about 7:30 that night; that Willie Scott, the deceased, passed him going west towards Sasakwa; that there was a man in the car with her and the man was not Lester Scott.

Several witnesses testified to seeing the defendant on horseback going, west from his home the evening before and going south the morning after the body was found.

Several witnesses testified that the defendant had a good dwelling house, good barn, and good improvements on his farm of 160 acres of land in Little River bottom, worth seven or eight thousand dollars.

The record shows that the county attorney in making the opening statement to the jury, among other things, said:

“That we expect the evidence to show this — that the Tuesday night before the happening of this homicide Sunday night, I believe it was, he told Mabel Clour that he was going to kill Willie Scott and place her body on the railroad track near the place where it was found; that he made that statement to her, and we expect the evidence to show that fact.
“That on one occasion when they were up in the jail, the testimony will show that there was a conversation took place there between Mabel Clour and Lester Scott, in the presence of J. R. Robertson, who was working in the county attorney’s office as the evidence man of this county. That in that conversation Robertson called attention to the fact that Mabel Clour had made this statement as to the conversation had with him down at Scott’s house on the Tuesday night preceding the homicide and he told him — . By Mr. Stevenson: We object to any statement that the officer may have made, if the court please. By the Court: Overruled. Exception. He said, ‘Now, Less, you will soon be released on bond and when you get out I don’t want you to mistreat this little girl,’ having reference to Mabel Clour. He said he would not. He said: ‘I know what Mabel said was true,’ or ‘I did say what Mabel said in the statement, but I didn’t mean it.’ ”

Counsel in their brief say:

“Mabel Clour did not appear, she did not testify, and the county attorney knew she would not testify because she was an incompetent witness, she being the wife of the defendant, in this connection we call the court’s attention to Kaul v. State, 43 Okla. Cr. 56, 277 Pac. 278.”

Under the provisions of section 3069, neither spouse may testify against the other in a prosecution of either for an offense committed before marriage, except as to an offense involving an injury personal to him or her, and in a prosecution for murder the competency of the wife of the defendant as a witness depends upon the relationship at the time of the trial, and not as to whether she was his wife at the time the alleged crime was committed, and even where marriage had been contracted prior to the trial for the evident purpose of excluding such testimony, it would not be admissible. Kaul v. State, supra; Lacey v. State, 27 Okla. Cr. 42, 224 Pac. 994; Cargill v. State, 25 Okla. Cr. 314, 220 Pac. 64, 35 A. L. R. 133; 76 A. L. R. 1088, Annotation.

An opening statement is to advise the jury concerning the questions of fact involved, so as to prepare their minds for the evidence to be heard. The scope of the opening statement should be limited to getting before the jury a detail of the testimony expected to be offered, and facts should not be stated which cannot be proved. Call v. State, 39 Okla. Cr. 264, 264 Pac. 643.

In Steeley v. State, 17 Okla. Cr. 252, 187 Pac. 821, 826, it is held:

“The statute which prohibits either the husband or wife from testifying to communications made by one to the other has no application to a third person or persons who may overhear communications between them, and such person or persons may testify to communications overheard by them between husband and wife.”

In Shacklett v. State, 23 Okla. Cr. 4, 211 Pac. 1063, it is said:

“Ordinarily, error cannot be predicated upon the opening statement of a prosecuting attorney to the jury, specifically stating what facts he expects to develop in testimony, where later, for some reason, he fails to introduce evidence to support some of the narrative related in the opening statement, unless such unsupported portions of the opening statement were made in bad faith and were manifestly prejudicial.”

Upon the record before us it follows from what has been said the statements of the county attorney were not improper, and the court did not err in overruling the objection thereto.

Some objections were made and exceptions taken to rulings of the court in admitting in evidence the two insurance policies taken out by the deceased and made payable to the defendant.

The evidence shows that the fact of their existence was known to the defendant before the death of his wife. This evidence was undoubtedly admitted upon the theory that it tended to prove a motive on the part of the defendant in killing the deceased, and was clearly admissible upon the theory that there was a motive on his part for the killing. It follows that the court did not err in overruling the objections taken.

Instruction No. 8 excepted to is admittedly a correct statement of the law of principals as defined by Penal Code, § 1808, St. 1931. It was not irrelevant to the evidence, and objection thereto was properly overruled.

Finally it is insisted that the evidence is insufficient to support the verdict of the jury.

On the part of the state it is insisted that the incriminating facts and circumstances, coupled Avith the defendant’s statements to the mother of the deceased, after he was released on bond, are incapable of explanation consistent Avith his innocence.

Where the evidence is circumstantial and the circumstances are such as to reasonably justify the inference of guilt, the weight and value of such testimony are exclusively for the jury. It is only where the evidence does not obviously warrant the inference of guilt that this court will interfere, otherwise the weight of circumstantial evidence and the inference to be drawn from it, in almost every case, would finally be determined by the appellate court. This court has repeatedly held that all that is required of the appellate court in determining, the sufficiency of the evidence to support a conviction is to find that there is evidence in the record which forms a sufficient basis for the verdict of the jury. The credibility of the testimony of the witnesses testifying on the part of the defendant is the exclusive province of the jury to determine, and, although such testimony may be uncontradicted and not directly impeached, when there are facts and circumstances in evidence tending to lessen the probability that such testimony is true, the jury may give it such weight they deem proper, even to the extent of wholly disregarding the same.

It is our conclusion, after a careful examination of the entire record, that the defendant had a fair and impartial trial and that his conviction is sustained by the evidence and the law.

It is therefore ordered and adjudged that the judgment of the district court of Seminole county, that the defendant is guilty of the crime of murder, and assessing the punishment at imprisonment in the state penitentiary for life, be and the same is hereby affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


text:
    JAMES M. HAYS v. STATE.
    No. A-8934.
    May 1, 1936.
    (57 Pac. [2d] 644.)
    QEtoss Rizley and D. E. Hodges, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Oklahoma county of robbery with firearms and was sentenced- to- serve a term of 50 years in the state penitentiary. This charge grew out of the robbery of a messenger of First National Bank of Oklahoma City, September 22, 1933. The testimony is that the actual robbery was perpetrated by defendant, one Charles A. Merritt, and one Busty Gibson and that C. W. Thompson and Bobert B. Thompson aided and assisted in the robbery, though not present. All were informed against. Bobert Thompson became a state’s witness and was granted immunity. C. W. Thompson was tried and acquitted; Merritt was convicted and on appeal to this court the conviction was affirmed. Merritt v. State, 55 Okla. Cr. 87, 25 Pac. (2d) 340. Gibson was arrested, but broke jail and escaped, and has not been apprehended. In the robbery, Charles Yowell, the bank messenger, was shot in the arm, and the testimony is that defendant fired the shot. A rather full statement of facts is made in the Merritt Case, supra, and we deem it unnecessary to make a further recital here. The evidence for the state fully sustains the judgment.

The main proposition argued is error occurring at the trial. This contention includes several items, particularly improper cross-examination of defendant on incompetent and immaterial matters and prejudicial remarks .of the trial judge. In his testimony, defendant gave his life history rather fully, telling in detail of his having been in the alcohol business with C. W. Thompson and Bobert Thompson at Kansas City for many years and in distributing liquor and alcohol in Oklahoma and adjoining states and of his association with Merritt and of his having been arrested on two occasions as a suspect in robberies, one the Home Trust Company robbery at Kansas City, the other a robbery of a picture show at Atchison. He denied any acquaintance with Gibson. His defense was alibi. On this point he testified he was in the state of Kansas at the time of the robbery and first learned of it the day following, from a newspaper; that he immediately sought out Merritt in Chicago to make inquiry with reference to it and was advised by Merritt that he, defendant, “was in no danger.” He returned to Kansas City and then fled to Seattle, where he resided, under a fictitious name, some two years. He also testified of the ill will of Robert Thompson and of the circumstances from which it arose. The state was given considerable latitude on cross-examination.

Some of the items and the objections thereto are: When asked on cross-examination concerning the picture show robbery at Atchison, he stated that the chief, of police had a personal grudge against him. This was a prelude to several questions, objections, and remarks; among them, the court said: “The witness opened the door by saying these officers had a personal grudge against him.”

When questioned as to the Home Trust Company robbery, counsel objected and the court said: “If he was there, he can say so, and if he wasn’t, he wasn’t.”

It was drawn out on cross-examination that Merritt had been convicted for this robbery and was in the penitentiary at McAlester. Defendant was asked if he had Merritt as a witness; on objection, the court said: “I permitted the defendant to go into his entire life over the objection of the prosecution, and I am going to let the proscution examine on all phases of his life. Proceed.” On further objection, the court, referring to Merritt, said: “It is a matter of common knowledge here that he is in the penitentiary, of- course and * * These are the principal items under this assignment.

Counsel argues these statements indicated prejudice and influenced the jury in returning a verdict against defendant, citing State v. Coella, 3 Wash. 99, 28 Pac. 28; Reed v. State, 5 Okla. Cr. 365, 114 Pac. 1114; Stuedle v. State, 6 Okla. Cr. 494, 119 Pac. 1022; Hicks v. United States, 2 Okla. Cr. 626, 103 Pac. 873; Shepherd v. State, 17 Okla. Cr. 630, 192 Pac. 238; Chambers v. State, 28 Okla. Cr. 156, 229 Pac. 646; State v. Bowker, 26 Or. 309, 38 Pac. 124; Trimble v. State, 32 Okla. Cr. 175, 240 Pac. 329, 330, and other authorities.

It is a general rule that a defendant, by detailing his life history, opens a wide field of cross-examination as to previous occupation, his associates, and his reputation.

The fact of the conviction or acquittal of a codefend-ant is generally held incompetent in other states. No case has been called to our attention in which this question has been before this court. Before reading his instructions, the trial court made a statement to the jury, cautioning them- against giving any consideration to any remarks by counsel or by the court with reference to the trial or the conviction of any other person charged with the crime for which defendant was on trial. We are of the opinion it would have been better if the trial judge had refrained from several of his statements, for, as this court said in Trimble v. State, supra:

“It is an excellent rule for trial judges, in the trial of criminal cases, to rule upon objections presented without comment, or, if the trial judge deems it proper to explain his ruling, the explanation should be so worded that the jury should not be informed of the opinion of the judge as to the guilt or innocence of the defendant or the credibility of any witness who may testify.”

Surely, in the instant case, after defendant testified to his being suspected and detained for other robberies, of his having been engaged in an unlawful business with the Thompsons, of his association with Merritt, and of his interview with him only two or three days after the crime and of the implied promise of Merritt to protect him and of his flight and concealment and of his knowing Merritt was in the penitentiary, within reach of process, it was not improper to inquire of him, on cross-examination, if be had procured his attendance as a witness. Nor, nnder the circumstances, was it improper for the state to show his conviction, but while this might properly have been shown, it was improper for the trial judge to make the statement that it was common knowledge he was. in the penitentiary.

When an accused, on trial for a crime, voluntarily testifies in his own behalf, he thereby subjects himself to the same rules of cross-examination as any other witness, and matters of interest and his connection and relation with those who committeed the crime may be shown. Upon an examination of the entire record, we are satisfied defendant had a fair trial, that his guilt is conclusively proven, that the punishment is not excessive, and the errors complained of do not warrant this court in interfering with the judgment.

The case is affirmed.

DAVENPORT and DOYLE, JJ., concur.