text:
    WILBUR B. JOHNSON v. STATE.
    No. A-10278.
    Sept. 13, 1944.
    (151 P. 2d 801.)

      Hubert Hargrave, of Wewoka, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Fred Hansen, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, W. B. Johnson, was charged by information filed in the superior court of Seminole county with the crime of murder; was tried, convicted, and sentenced to serve life imprisonment in the State Penitentiary, and has appealed.

On July 23, 1941, the defendant shot the deceased, R. A. Davis, with a 38-caliber pistol, which caused the death of the deceased two days later. About a year prior to the killing, the defendant was hired by the deceased to work on his farm near the town of Maud. Later, in February, 1941, the parties started farming certain land on a share-crop basis. In connection with these operations, they jointly borrowed money from a Maud bank, and also carried a joint account with two or three business establishments. The defendant was a widower 66 years of age. The deceased was 36 years of age, and lived with his wife on the farm. About two weeks before the killing occurred, the defendant, who had been living in the house with the deceased, moved to a small house on a lease adjoining the farm of deceased.

According to the evidence of the state, on the morning the shooting occurred, the deceased took some bantam chickens allegedly belonging to the defendant over to the shack where defendant had moved. An argument arose because the deceased failed to bring a bantam rooster which the defendant claimed belonged to him. In the argument that ensued over the bantam rooster, the deceased called the defendant a “damn liar.” This enraged the defendant, and he Avent into the shack after his pistol. Upon his return to the pick-up truck Avhere deceased was sitting behind the steering Avheel, the defendant fired a shot which struck deceased in the right shoulder and ranged downward severing the spinal cord and causing complete paralysis of the deceased’s body below the place where the spinal cord had been severed. Some neighbors were attracted to the scene by the shooting and the yelling of deceased, and they removed the deceased to a hospital at Maud, where he died tAvo days later. While in the hospital, the deceased made a statement to the officers concerning the incident surrounding the shooting, which statement was admitted in evidence as a dying declaration.

The defendant testified that the deceased had taken advantage of him and had not carried.out certain transactions in accordance with promises made to the defendant. That the deceased was younger and much stronger man than he was, and that at the time the shooting occurred the deceased had ordered the defendant to leave the place, and that he told the deceased that he was not going to leave, but that he intended to finish the crop; that deceased then started toward defendant, and defendant went into the shack; that deceased started in the door, and, to quote the defendant, “I ran in that door, pulled out that six-shooter, and said ‘Cotton, don’t come in that door.’ He said, ‘Hell, you won’t do nothing,’ and started in, and, bam, I took him.” On cross-examination, the defendant admitted that he had been convicted of manslaughter in Pontotoc county, Okla., and served 15 years, and that he had also been convicted previously of armed robbery.

It is first contended that the trial court erred in overruling the demurrer to the amended information filed against the defendant for the reason that it charged the crime of murder, the same being a second and subsequent offense. That the statute authorizing the filing of an information charging a former conviction is only for the purpose of increasing the punishment; therefore^ in a capital offense, it is improper to charge the alleged offense was a second or subsequent offense for the reason that this allegation would not authorize an increase in punishment for the alleged offender, but could only be used by the state to attack the character and reputation of the defendant by introducing evidence in chief to show former convictions.

The amended information in question, omitting formal parts, provides:

“That at and in the county of Seminole, and the State of Oklahoma, on or about the 23 day of July, 1941, and prior to the filing of this information, said defendant, Wilbur B. Johnson did then and there wilfully, unlawfully and feloniously, with premeditated design to effect the death of R. A. Davis, shoot and discharge into the body of the said R. A. Davis, certain metal bullets from a certain gun, and there inflicting upon the body of the said R. A. Davis, certain mortal wounds, from the wounds the said R. A.. Davis thereafter did die on the 25th day of July, 1941.
“Said offense being a second and subsequent offense, he, the said Wilbur B. Johnson having been previously convicted in the District Court of Pontotoc County, Oklahoma, a Court of competent jurisdiction, in Case No. 2027, for the crime of Manslaughter in the First Degree, on the 8th day of April, 1929, and thereafter, on the 11th day of April, 1929, he, the said Wilbur B. Johnson, was by judgment and sentence of the Court sentenced to serve a term of fifteen (15) years in the State Penitentiary at McAlester, Oklahoma, for the crime of Manslaughter in the First Degree, and against the peace and dignity of the state.”

The question raised by counsel for defendant is very interesting and is without judicial precedent in this state. Counsel for both the state and defendant have stated to the court that they had been unable to find any authority passing directly upon the point herein involved, except counsel for defendant insists that the case of Wright v. Commonwealth, 109 Va. 847, 65 S. E. 19, is in point.

In determining the disposition of this case, the instructions pertaining to this issue should be fully considered along with the evidence which was permitted to go to the jury. In this case, the killing was admitted; the plea was one of self-defense. Under the record herein, the court was bound to submit to the jury not only the charge of murder as alleged in the information, but, also, the included and lesser offense of manslaughter in the first degree. Manslaughter in the first degree is punishable by imprisonment in the State Penitentiary for any period of time not less than 4 years. 21 O. S. 1941 § 715. Under the second offense statute, 21 O. S. 1941 § 51, in case the jury should find the accused guilty of manslaughter in the first degree, and further find that the said crime was a second and subsequent offense, the minimum punishment which they could assess would have been a term in the State Penitentiary of not less than 10 years.

It seems well settled that the purpose of the habitual criminal statute is to authorize the infliction of a greater punishment where one accused is found guilty of committing a second or subsequent offense. Spann v. State, 69 Okla. Cr. 369, 103 P. 2d 389, 390; Ex parte Wright, 78 Okla. Cr. 157, 145 P. 2d 772; Ex parte Shockley, 78 Okla. Cr. 701, 144 P. 2d 118; Ex parte Wray, 61 Okla. Cr. 162, 66 P. 2d 965.

It is also well settled that in order to subject an accused to the enhanced punishment for a subsequent offense, it is necessary to allege in the indictment or information the fact of a prior conviction or convictions. O’Neil v. State, 76 Okla. Cr. 107, 134 P. 2d 1033; Long v. State, 77 Okla. Cr. 174, 140 P. 2d 600; Ex parte Weaver, 60 Okla. Cr. 290, 64 P. 2d 925.

There would be considerable merit to the argument of counsel for defendant if this were a case where the defendant would be guilty of murder or nothing. As was said in this case of Wright v. Commonwealth, supra [109 Va. 847, 65 S.E. 20]:

“It has long been the policy of this commonwealth to visit with cumulative punishment habitual offenders wlio come within the terms of these enactments. * * * We think, however, that both the phraseology and intendment of the present provisions preclude the possibility of their application to a prosecution for a capital felony, and demand that their operation be limited strictly to indictments for offenses punishable by confinement in the penitentiary only. * * *
“The subject is also quite fully treated in 8 Am. & Eng. Ency. of Law, 479, et seq., under the head of ‘Cumulative Punishment,’ and in none of the numerous decisions there assembled, so far as we have had opportunity to examine them, has the rule been attempted to be applied to a prosecution, the primary purpose of which was to inflict capital punishment upon the accused. Indeed, the incongruity of such application would seem obvious. There can, of course, be no cumulative punishment in a capital case, and the manifest design and purpose of the Legislature, as we have seen, was to prevent the repetition and increase of crimes by imposing additional imprisonment upon habitual offenders for successive offenses; but we cannot suppose that the Legislature intended that these salutary statutes should be used to prejudice a prisoner on trial for his life, by opening wide the door to the admission of evidence of distinct offenses, tending, at least, to establish the bad character of the accused by showing that he is an old offender, on the theory that in a prosecution of that sort it is possible for the jury to find him guilty of an offense within the statute. If such construction were permissible, it might not infrequently result in the conviction of the accused of a capital felony upon evidence wholly inadmissible to establish his guilt. Surely, in the interpretation of these extremely penal statutes; the courts would not be warranted in adopting a construction which would render such a result possible.
“It was not the intention of the statute, even in cases to which it applies, by the introduction of proof of former convictions, to supply substantive evidence of the guilt of the accused in the principal case, but only to enhance the punishment in the event his guilt should be proved by independent testimony.”

it is interesting to note that there is quite a distinction between the statutes of Virginia on this question and the statutes of Oklahoma. Virginia has a similar statute to ours providing for an enhanced punishment in case of a conviction where the indictment alleges a second or subsequent offense. However, in addition to that statute, they have another statute providing for the imposition of additional punishment by the Circuit Court of the City of Richmond, when the superintendent of the penitentiary calls his attention to the fact that the accused had prior to his present conviction served a sentence in said institution, and said prior conviction was not alleged in the indictment under which the accused was sentenced. The Supreme Court of Appeals of Virginia discusses this other statute in the case of Wright v. Commonwealth, supra, as follows:

“It has been suggested that the construction we have given the statute would result in a miscarriage of justice, in the event the jury should find the prisoner guilty under the indictment of a less offense than murder of the first degree; that, the evidence of prior offenses being excluded, the jury could not add the additional punishment required by the statute when the accused was found guilty of the lesser offense. This difficulty is, we think, removed by sections 4180, 4181, 4182 and 4183 of the Code of 1887 (Code 1904, pp. 2181, 2182).
“Section 4180 provides: When a person convicted of an offense, and sentenced to confinement therefor in the penitentiary, is received therein, if he was before sentenced to a like punishment, and the record of his conviction does not show that he has been sentenced under section thirty-nine hundred and five, or thirty-nine hundred and six, the superintendent of the penitentiary shall give information thereof, without delay, to the said circuit court of the city of Richmond, whether it be alleged or not in the indictment on which he was so convicted, that he had been before sentenced to a like punishment.’ And the other sections provide for the imposition of the additional punishment.
‘‘These complementary sections prevent a possible failure of justice in the instance suggested, and at the same time the accused is spared the injustice of having evidence of prior offenses introduced before the jury where he is upon trial for murder of the first degree.”

The trial court evidently agreed with the theory of counsel for defendant that you could not charge the crime of murder as a second and subsequent offense because an examination of the instructions discloses that he defined the crime of murder and instructed the jury that if they should find beyond a reasonable doubt that the defendant was guilty of the crime of murder, that they should assess his punishment at death or life imprisonment. No mention of a subsequent conviction is set forth in this instruction. However, in defining manslaughter in the first degree and instructing on that issue, the court further told them in defining the punishment to be fixed in case the jury found the defendant guilty of manslaughter in the first degree, and further found that it was a second and subsequent offense that the punishment should be imprisonment in the State Penitentiary for any term not less than ten years.

We can readily see the situation confronting the county attorney. He knew from the facts developed at the preliminary examination that the issue of manslaughter in the first degree would have to be submitted to the jury. He was confronted with the fact that in case of a conviction of manslaughter in the first degree, the minimum punishment would be four years in the State Penitentiary.

The county attorney further knew that defendant had previously been convicted and had served a term in the State Penitentiary for manslaughter in the first degree, and he knew that if the jury should find the defendant guilty of manslaughter in the first degree, and that it was a second offense, that the minimum punishment would be a term of ten years in the State Penitentiary. Under these circumstances, we think the county attorney was justified and did his duty in asserting the allegation of a second offense in the information.

As to the matter of pleading, it is doubtful if the issue presented by defendant was properly raised by a demurrer to the information. The information properly charged the crime of murder. All of the necessary elements of murder were set forth in the information. The issue could have been raised by motion to strike the allegation of a second offense at the time of the arraignment of the accused, or by objection to the introduction of evidence as to the former conviction during the trial. In ruling upon the demurrer to the information, it was only incumbent upon the court to determine whether the information was reasonably certain as to the offense charged and was couched in such language as to enable a person of common understanding to know what is intended so that he may prepare bis defense, and so that a judgment of acquittal or conviction would be a bar to a subsequent prosecution for the same offense. The information in the instant case meets this test.

We have carefully examined the instructions in this case, and, while there are some slight imperfections in the wording of some of them, they substantially state the law of the case. The court gave an instruction pertaining to the admission of the evidence of a prior conviction which reads as follows:

“You are instructed, that in this case the defendant is charged with murder, which includes the lesser offense of manslaughter in the first degree, as being a second and subsequent offense, and it is alleged that the defendant had been previously convicted in the district court of Pontotoc county, Oldahoma, as charged in the information.
“You are instructed that an admission of evidence of a prior conviction must be proven beyond a reasonable doubt, and in this case the admission of such evidence of a prior conviction should not be construed by you as tending to prove the guilt of the defendant in this case, and has been admitted only for the purpose of determining the punishment to be given this defendant.”

It is next contended that the court erred in admitting in evidence over the objection of defendant the statement made by deceased in writing to the county attorney and sheriff of Seminole county, upon the theory that said statement was a dying declaration of the deceased. The statement in question reads:

“My name is Roy A. Davis, and I make this statement at tbe Maud Hospital, realizing that I may die, as I was shot by W. B. Johnson about 8 o’clock this morning about 3 Vs miles north of Maud, in Seminole county. He had been living at our home, but had moved out to this place, and I was taking some bantam chickens to him that he had left at our home. He claimed there was a rooster of his that I had not brought, but it was not his rooster, so I told him he was a damn liar, then we talked some more, then he went in the house and I thought he was in a good humor, and he came back out to the car, walked up to me, and shot me in the right shoulder, and said, ‘Now, who is a damn liar,’ and then said, ‘I am going to shoot you right between the eyes,’ and I begged^ him not to and told him I thought he already had me. He snapped the pistol once more pointing it at my head. I had no gun or knife or other weapon, and had both hands on the steering wheel when Johnson shot me. I did not éven expect him to shoot me. After he shot me, I asked liim to call Jack Whitehead to bring me to the hospital, and he wouldn’t do it. I had never threatened to harm Johnson anyway.
“(Signed) R. A. Davis.”

The defendant contends that the language, towit, “realising that I may die,” conclusively shows that the deceased, R. A. Davis, “had not abandoned hope of recovery,” and hence under the rule announced in Bilton v. Territory, 1 Okla. Cr. 566, 99 P. 163, the dying declaration was improperly admitted.

If we were to consider this proposition based solely upon the language employed in the statement, this contention would probably have to be sustained, but in order to determine the state of mind of deceased at the time the statement was given, the state introduced the evidence of the examining physician and other parties who talked to the deceased at about the time of the giving of the statement. The wife of deceased, who was also a registered nurse, testified on this point as follows:

“Q. What did he say to you in reference to his feeling as to whether lie was going to live or die? A. Well, he just merely said he would not last long, and asked me to get his folks. He wanted to see his folks before he died.”

The examining physician, after testifying that the bullet had severed the spinal cord resulting in complete paralysis from the abdomen down, testified:

“Q.. Doctor, I will ask you from your examination of the deceased, when you saw him there at the hospital, if you ever felt he had any chance to recover? A. If I did? Q. Yes, sir. A. No, sir. Q. I will ask you if the deceased made any statements to you that morning about whether he was going to get well? A. Yes, sir. Q. What statement did he make? A. Well, it was either when he was in the operating room or after I got him to his private room; of course, Ave naturally try to brace a felloAY up. Q. Doctors never tell a fellow they are going to die? A.' No, sir, I don’t. I said you are going to be all right, Cotton; he said, ‘No, I can’t make it.’ I said he Avas going to be all right.”

On cross-examination, he testified:

“Q. Doctor, do you believe he had a firm belief he was mortally Avounded? A. Yes, sir.”

The sheriff testified:

“Q. Noav, before she (Mrs. Davis) came in the room, tell the court the conversation you had with Mr. Davis? A. I introduced myself to him and told him who I was, I said, ‘Well, do you realize you might die from this Avound?’ and he said, ‘Yes,’ and he said, ‘Yes, I know I will. ’ Q. You say you. asked him if he kneAV he was going to die? A. I asked him if he realized he might die and he said ‘I am going to die.’ ”

In the case of McClendon v. State, 36 Okla. Cr. 11, 251 P. 535, the rule as to the admissibility of a dying declaration is stated as folloAVS:

“To Avarrant the admission of a statement as a dying declaration, it is not essential that there be an express declaration that declarant is going to die, or that he has no hope of recovering. It is sufficient if it satisfactorily appears that he believed he could not survive, whether it be directly proven by the express language of the declarant or from the other circumstances of the case, just as the nature and extent of the injuries, his evident danger, the opinion of medical attendants, stated to him, or the length of time between the time of statement and death.” Allen v. State, 16 Okla. Cr. 136, 180 P. 564; Elliott v. State, 18 Okla. Cr. 230, 194 P. 267; Smith v. State, 56 Okla. Cr. 338, 38 P. 2d 591.

The trial court properly excluded the jury at the time the question of the admissibility of the dying declaration arose. In the absence of the jury, the court heard proof of its admissibility. At the conclusion of the evidence, the trial court instructed the jury as follows:

“You are further instructed that the prosecution has sought in this case to prove certain statements, which it is claimed the deceased made a short time prior to his death, as his dying declaration; and in this connection you are instructed, that, under the law, before these statements can. be considered by you, you must be able to find in the light of all the facts and circumstances appearing upon the trial, that at this very time these statements were made the deceased had given up all hope of recovery and believed that he would die; and even should you find such statements were made, and under the conditions which render them admissible, you are to determine as to whether or not the deceased was correctly understood by the witnesses, and what he said correctly detailed by them, and, should you find all these facts in favor of the prosecution, you are not bound to believe the facts stated in said dying declaration as true, but you should weigh such statements and consider them together with all the other evidence in the case.”

It is our conclusion, after a consideration of all of the evidence, that the facts and circumstances were such as warranted the trial court in concluding that the deceased was under a sense of impending death at the time he made the statement to the officers, and properly admitted said statement in evidence.

The physical facts and circumstances all corroborate the theory of the state concerning the killing, and the jury was amply justified in concluding that the defendant was guilty of murder as charged in the information. If the defendant’s story of the homicide had been true, the deceased would have fallen at the door because the shot which struck him caused an instant paralysis of his lower limbs. When the neighbors ran to the scene of the shooting, they found the deceased under the steering wheel, and they had great difficulty in moving him because of the complete paralysis which he was suffering. There is no dispute that the deceased was unarmed. As further corroboration of the statement of the deceased was the testimony of the sheriff that two of the shells found in the pistol used by defendant had been snapped.

There are no material errors in the record sufficient to require a reversal of this case, and the judgment and sentence of the superior court of Seminole county is accordingly affirmed.

BAREFOOT, J., concurs. DOYLE, J., not participating.


source: Caselaw Access Project

author: BAREFOOT, J.

license: Public Domain

text:
    HENRY GRIFFIN v. STATE.
    No. A-10276.
    Sept. 13, 1944.
    (151 P. 2d 812.)

      Harry D. Pitchford and Tom Payne, both of Okmulgee, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Jack Pitchford, Co. Atty., of Okmulgee, for defendant in error.
   BAREFOOT, J.

Defendant, Henry Griffin, was charged in the superior court of Okmulgee county with the crime of murder; was tried, convicted, sentenced to serve a term of life imprisonment in the State Penitentiary, and has appealed.

For reversal of this case, it is contended:

First, that the arguments before the jury of the county attorney and the assistant county attorney were such as to create passion and prejudice in the minds of the jury, in view of the facts in the case; and

Second, that the court erred in refusing to give a requested instruction.

It is first necessary to give a short statement of the facts.

Defendant was charged with killing his wife, Ella Griffin, in Okmulgee county, on the night of February 4, 1942, by shooting her with a .38 calibre pistol. The conviction was based upon circumstantial evidence. The parties were negroes. The deceased and defendant resided in the city of Okmulgee, and had been married about five years. She liad been sick for some time, and was the owner of certain property, consisting of a home and a small grocery store, and other property.

On the date of the killing', defendant had taken his wife for an automobile ride, and they were traveling upon a rough road about two miles from the city of Okmulgee, it was about 9 o’clock at night. There was a scream, a shot, followed by several other shots. The defendant appeared at a house about a quarter of a mile away, and claimed that there had been an attempted hijacking. Upon investigation the v/ife was found dead on the road, and the automobile standing some 20 feet from the body. The woman had been shot several times.

Defendant claimed that he and his wife were hijacked by two young white men, who came up in a car behind the car driven by defendant, and that the shots that killed deceased were fired by one of the hijackers. He testified that a black purse belonging to the deceased, and containing about |32, was taken.

Dr. James E. Guess, who examined the body, testified that five shots had entered the body of deceased, one entering the left side of the back of the neck and coming out on the right side, and that there were powder burns where this shot entered.

John Forbes, a deputy sheriff, who made an investigation of the killing at the scene and on the night it happened, testified fully with reference to the condition of the premises, and a map was drawn with chalk on the floor of the courthouse and used in testifying, and it is therefore hard to distinguish exact locations and distances .from the record. This witness also testified to statements made by the defendant with reference to the happenings at the time of the killing.

In order to discuss the questions raised in this appeal, it is unnecessary to go too much into detail.

Defendant testified that immediately after the shooting he went to the home of a man by the name of Casenough, and with Casenough and his boys accompanying him, returned to the car. Defendant stated that he had left the motor, heater, and lights on, and that when he returned the lights were dimmed, the motor was off, and the heater was still running. The car had been moved about 60 feet, and they found the body of his wife 15 or 30 feet up the road. Defendant attempted to describe the hijackers, but no one was ever apprehended.

The circumstances relied upon by the state to uphold the conviction of defendant, other than as above stated, were the testimony of the officers who made the investigation on the night of the killing that they found tracks of only one car — that of the defendant — although defendant had stated that the hijackers drove up by the side of the car in another automobile.

August Casenough, a brother-in-law of defendant, who went with him from his home to the scene of the killing, testified that when he arrived the doors of the car were open and that the heater and motor were not running. The defendant testified that one of the hijackers had hit him with a gun and this witness testified that defendant’s mouth was bleeding, and he had one bad eye. A doctor also testified to treating the defendant on the night of the killing.

The state presented a witness by the name of Frankie Stevens, who testified that she lived about a quarter of a mile from the scene of the killing; that she heard a woman scream, then a shot, and a few seconds later three or four more shots; that she looked down towards the road and saw the lights of a car which was headed west; that she saw the lights of only one car; that she did not see anyone run out in front of the lights.

The gun with which deceased was killed was not recovered and introduced in evidence. The state proved by Earl Long that in January, 1942, just prior to the killing, he had left a .38 calibre owl-headed pistol with the defendant for the purpose of sale. About a week later he went to defendant for the gun, and was informed by defendant that he had let a fellow have it for the purpose of trying it out, and that if it was satisfactory, the boy would buy it. This ivas about two weeks prior to the killing. He never recovered the gun. The evidence showed that the bullets which killed deceased were from a .38 calibre pistol.

The sheriff of Okmulgee county testified that the defendant stated he did not know the name of the party to whom he delivered the gun; that he did not know his whereabouts, and could give no description of him that would enable the officers to locate either the party or the gun.

The state introduced as a witness a niece of the deceased, who testified that the deceased owned five purses, but only one black one, and that it was found by her in a drawer in the home of deceased, after the killing. She also testified that deceased owned a grocery store, the house where she was living, and other property. She had heard deceased and defendant have arguments, and talk about a separation. She also testified to a conversation with defendant while he was in jail, in which defendant told of a conversation between himself and deceased, when deceased liad expressed the intention of seeing a lawyer and making a will, and defendant had replied: “Don’t worry about your will; if anything happens I will do what is right about your property.”

Defendant offered a number of substantial witnesses who testified to his good character and reputation. Also a servant who had worked in their home and who testified to their getting along well; never having heard them fuss-dug; that deceased told her on the evening of the killing that defendant was going to take her out for a drive; and that deceased had two black purses.

Defendant denied the killing, and his testimony has already been referred to. He testified that his wife was killed by one of the hijackers.

We are of the opinion that the evidence in this case is sufficient to sustain the judgment and sentence. It is true that it is based upon circumstantial evidence, but the jury, having seen the witnesses upon the stand and having observed their demeanor, having heard the conflicting-testimony that was given in this case, and having had an opportunity to examine the map which gave the exact location of the cars, the tracks, and other information pertaining- to the killing, was in a much better position to judge this testimony than is an appellate court. The evidence with reference to the pistol and the bullets found in the body of deceased; the testimony of Doctor Guess that one of the shots entered to the left side of the neck of deceased and emerged on the right side and that there were powder burns, was strong circumstantial evidence against the defendant, especially in view of his evidence that the one who shot his wife was on the opposite or right side. While this evidence is circumstantial, we do not feel justified in holding that it was insufficient to sustain the judgment and sentence.

It Is contended that the court erred in refusing to give the following instruction:

“You are instructed that the state is not required to prove a motive for crime, but in this connection, you are instructed that upon failure to prove a motive, that it is circumstance in favor of the accused; and if the state fails to prove a motive, and this failure raises in your mind a reasonable doubt as to the guilt or the innocence of this defendant, you should resolve that doubt in his favor and acquit him.”

The question of motive is a question of fact for the consideration of the jury, to be deduced from the evidence presented. As stated in the first sentence of the requested instruction, the state is not required to prove a motive for crime. It does not follow, however, that where a motive is not proven, an instruction should be given by the court that this raises a reasonable doubt as to the guilt of defendant, or that it is a circumstance showing defendant’s innocence. One may be convicted of murder where no motive is proven. Fry v. State, 78 Okla. Cr. 299, 147 P. 2d 803.

In the case of State v. Brown, 168 Mo. 449, 68 S. W. 568, 576, the court had under consideration a requested instruction very similar to the one here presented, and it was there said:

“An instruction was asked by defendant, and refused by the court, which reads this way: ‘The jury are instructed that when the evidence fails to show any probable motive to commit the crime charged on the part of the accused, this is a circumstance in favor of his innocence; and in this case, if the jury find, upon careful examination of all the evidence, that it fails to show any probable motive on the part of the accused to commit the crime charged against him, then this is a circumstance which the jury ought to consider, in connection with all the other evidence in the case, in making up their verdict.’ This instruction was properly refused, because a man is not to be acquitted of crime simply because his motive for perpetrating it cannot be discovered. State v. David, 131 Mo. [380], loc. cit. 397, 33 S. W. 28, and subsequent cases.”

With reference to the contention that the arguments presented by the county attorney and his assistant were such that caused the defendant to be prejudiced to the extent that demands a reversal of this case, we have read the record, which contains these remarks.

In the first place, there was no objection and exception to the statements, as has so often been held necessary by this court, with the exception of one statement made by the assistant county attorney.' He made reference to a case formerly tried in Okmulgee county in which no motive had been proven, and stated that the defendant in that case was then in the penitentiary. This was improper argument in this case, and the court should have so admonished the jury. However, it is not such as would cause a reversal of the case, under the facts and circumstances here presented. There is nothing to show that defendant was prejudiced by this statement. Here the defendant was charged with murder. This was the only charge presented to the jury by the instructions of the court. The only punishment that could be inflicted under the law was death, or a sentence of life imprisonment. The jury did not give the death sentence, but only inflicted the lightest penalty they could give under the law. This verdict did not indicate they were acting from passion and prejudice, if they believed defendant was guilty under the evidence submitted.

As above stated, the argument made by the county attorney contained some statements which should not have been made, and concerning which the Attorney General in his brief states, “We think some of these statements Avere improper and should not have been made.” Counsel for defendant made no objection, and as above stated, we do not think they were such as to constitute reversible error in view of the record here presented.

It has often been held that in considering the statement or argument of the county attorney, it will be considered in the light of all of the eAddence in the record, and to constitute reArersible error it must be upon some material point which injuriously affected the defendant’s rights. Williams v. State, 4 Okla. Cr. 523, 114 P. 1114; Morgan v. State, 9 Okla. Cr. 22, 130 P. 522; Williams v. State, 19 Okla. Cr. 307, 199 P. 400; Sherman v. State, 20 Okla. Cr. 306, 202 P. 521; Payne v. State, 21 Okla. Cr. 416, 209 P. 334; Murray v. State, 24 Okla. Cr. 113, 217 P. 891; McCarron v. State, 61 Okla. Cr. 264, 67 P. 2d 461; Chesser v. State, 63 Okla. Cr. 84, 73 P. 2d 191; Porter v. State, 76 Okla. Cr. 16, 133 P. 2d 903.

Wre are of the opinion that the judgment and sentence of the superior court of Okmulgee county should be affirmed ; and it is so ordered.

JONES, P. J., concurs. DOYLE, J., not participating.


text:
    LOUIS SOLOMON v. STATE.
    No. A-10310.
    Sept. 20, 1944.
    (151 P. 2d 944.)

      W. A. Chase, W. C. Henneberry, and B. C. Franklin, all of Tulsa, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Dixie Gilmer, Co. Atty., of Tulsa, for defendant in error.
   BAREFOOT, J.

Defendant Louis Solomon was charged in the district court of Tulsa county with the crime of receiving stolen property as a second offender, was tried, convicted, sentenced to serve a term of six years in the State Penitentiary, and has appealed.

The charging part of the information filed against the defendant is as follows:

“.. . that Louis Solomon on the 14th day of May, A. D. 1941, in Tulsa County, State of Oklahoma, and within the jurisdiction of this court, did unlawfully wilfully, knowingly, and feloniously, upon a consideration, obtain and receive from one John Doe, whose true name is unknown to informant, certain personal property towit: one fraternity pin of the value of |3 in good and lawful money of the United States of America, which said property had been previously stolen from one A. B. Butler, and which said defendant did then and there at the time known that said property had been stolen, and did obtain and receive the same as aforesaid, with the felonious intent then and there upon the part of said defendant to convert the same to his own use and benefit, and to deprive the owner thereof permanently,
"That said defendant heretofore, towit: on the 10th day of February, 1936, was convicted of knowingly receiving stolen property in the district court of Tulsa County, Oklahoma, and was sentenced to serve one year in the State Penitentiary at McAlester, Oklahoma by Judge Thurman S. Hurst, Judge of said Court, and being case No. 7490.
"That said defendant heretofore, to-wit: on the 27th day of January, 1936, was convicted in the U. S. District Court for the Northern District of Oklahoma, for use of mails to defraud, and sentenced to two years in Levenworth, by the Honorable F. E. Kennemer, and being case No. 8397.”

It will be noted that two former convictions of a felony are alleged, one in the district court of Tulsa county, and one in the United States District Court for the Northern District of Oklahoma.

It is contended by the defendant that it was improper to allege in the information more than one prior conviction, and that by reason of this being done, defendant’s character was put in issue, without him first having put it in issue.

We have examined the authorities, and do not find that this exact question has ever been passed upon by this court. Our statute, 21 O. S. 1941, § 51, provides:

"Every person who, having been convicted of any offense punishable by imprisonment in the penitentiary, commits any crime after such conviction, is punishable therefor as follows: ...”

Nothing in this statute refers to a “second,” or “third” offense. It says: “Every person who, having been convicted of any offense . . . commits any crime after such conviction.”

We have often had this statute before us for consideration. Hudson v. State, 78 Okla. Cr. 160, 145 P. 2d 774; Ex parte Wright, 78 Okla. Cr. 157, 115 P. 2d 772; Ex parte Burnett, 78 Okla. Cr. 147, 145 P. 2d 441; Rheuark v. State, 78 Okla. Cr. 121, 144 P. 2d 118; Daves v. State, 77 Okla. Cr. 343, 141 P. 2d 603; Long v. State, 77 Okla. Cr. 174, 140 P. 2d 600; Johnston v. State, 46 Okla. Cr. 431, 287 P. 1068.

In construing it, we have universally held that it does not define a new or independent crime, but provides that when one is found guilty of a specific crime, he may be more severely punished because of his previous conviction as alleged and found. Ex parte Bailey, 60 Okla. Cr. 278, 64 P. 2d 278; Ex parte Weaver, 60 Okla. Cr. 290, 61 P. 2d 925; Ex parte Shockley, 78 Okla. Cr. 101, 144 P. 2d 118; Long v. State, 77 Okla. Cr. 174, 140 P. 2d 602.

If the defendant had been previously convicted more than one time, we see no reason why it might not be alleged and proven. We can see how this proof would be detrimental to a defendant, but this statute was evidently enacted for the very purpose of making it harder for those who had theretofore been convicted of a felony, and served a term in the penitentiary.

In defendant’s brief, it is stated:

“It is my judgment that regardless of the fact that the plaintiff’s in error then counsel did not file a demurrer to said information or objection to the introduction of evidence, still said information on its face is prejudicial and bad.”

The record reveals that no demurrer or motion to quash the information was filed, nor was any objection offered to the introduction of evidence. It has universally been held that unless objection has been made to the information by way of demurrer, motion to quash, or objection made to the introduction of evidence, that it will be considered that one has waived his right to question the same, except that objections to the jurisdiction of the court over the subject matter, or that facts stated do not constitute a public offense, may be taken at the trial under the plea of not guilty, and in arrest of judgment. 22 O. S. 1941 § 512; Jackson v. State, 31 Okla. Cr. 30, 237 P. 129; Jackson v. State, 71 Okla. Cr. 258, 110 P. 2d 929.

In an exhaustive note in 58 A. L. R. page 60 et seq., the question of prior convictions has been fully discussed. See, also, O’Neil v. State, 76 Okla. Cr. 107, 134 P. 2d 1033, and cases heretofore cited. We refrain from making further references, but those who desire may read these cases as the,7 fully discuss the statutes and questions similar to the one here involved.

Where one admits a previous conviction or convictions, the question of whether it is then proper for the trial court to admit proof of the prior conviction before the jury is often raised. Some states have statutes providing that when this admission is made it is unnecessary for the state to make this proof. In this case, when the state attempted to prove the prior convictions of defendant, his counsel admitted them. The state was permitted to introduce the record of these convictions, and this is complained of as error on this appeal.

Under our practice of permitting the jury to assess the punishment, we do not see how this could be considered error. If the jury is permitted to assess additional punishment by reason of the prior convictions, certainly they would have the right to be informed that there had been prior convictions, and to our way of thinking, it would cause just as much prejudice for the court to inform the jury of the prior convictions in his instructions as it would to permit proof thereof. In the instant case, the court properly instructed the jury that this evidence was not to be considered in finding the defendant guilty or not guilty, but that in the event a verdict of guilty was found, and they found that there had been a previous conviction as alleged and proven, that they could then take this into consideration in assessing' the punishment. The defendant in this case took the witness stand and admitted the previous convictions as alleged, and testified that he had served three previous terms in the penitentiary for the.commission of felonies.

We do not find that the court erred in refusing to sustain the contention that it was error to allege and prove the prior convictions of defendant.

It is next contended by defendant that the court erred in refusing to sustain the demurrer to the evidence, and that the evidence was insufficient to sustain the conviction.

This contention is largely based upon the fact that the property stolen was not identified by the prosecuting witness. Defendant was charged with receiving a gold fraternity pin of the value of Three Dollars. A short time prior to the arrest of defendant, the home of A. B. Butler, who resided in Tulsa, had been entered and certain jewelry stolen therefrom. Mr. Butler and his wife were away from home for a few days, and this robbery occurred during their absence. They reported it to the local police officers. Soon after receiving this report, one W. L. Oliver, a jeweler of Tulsa, in compliance with a city ordinance, reported that he had purchased from Louis Solomon (the defendant) a certain fraternity pin for 35 cents. The officers immediately took the pin to the home of Mr. Butler, and it was identified as his pin, and one that had been stolen from his home. On cross-examination it developed that there were no special marks on the pin by which it could be identified, but the prosecuting witness testified to the loss of the pin, that it was received by him while at Yale Cniversity; that it was the pin of the Berzilius fraternity, an exclusive fraternity at Yale University; that only a few of the pins were given each year; that the fraternity was not represented in other Universities; and that he had only known of about four of the pins ever being in the State of Oklahoma. Other evidence was offered by the state. Mr. Oliver, the watchmaker and jeweler, testified that defendant came to his place of business on or about May 14, 1941, which Avas shortly after the Butler home had been entered, for the ostensible purpose of having his watch adjusted. Before leaving he produced the fraternity pin, and sold it to the witness for 35 cents, as old gold. The same day the witness read an account of the burglary of the Butler home, and reported this transaction to the police.

Flossie Pennington, a maid at the home of Mr. Butler, and Avho occupied quarters in the rear of the home, testified that the defendant came to the back door of the Butler home a short time prior to the entry thereof, and inquired for the “chauffeur and yard man.” She testified that the Butlers did not haAre a chauffeur or yard man.

The officers testified that the defendant, AAdien arrested, stated that he knew nothing about the fraternity pin. He denied having sold the same to the jeweler. However, he testified at the trial that he had the fraternity pin and sold it for 35 cents, as testified to by Mr. Oliver, but he denied the testimony of the officers and the maid. He gave the same story that is so often given by defendants under similar circumstances. He claimed he bought the pin from some unknown person, whom he did not know and could not name, and whom he had never seen since that time. He testified that he approached this party, who was unknown to him, and asked him if he had any old silver spoons, telling him that he was engaged in the sale of old gold and silver, and that this unknown party produced the fraternity pin and he bought it from him for the sum of 30 or 35 cents.

The officers who arrested defendant further testified that defendant told them if permitted to leave the jail lie thought he would be able to locate the diamond broach of the value of $2,500 that was taken from the Butler home at the time of the burglary. The assistant county attorney permitted him to be released, but this property was not recovered.

Under the above, we think the evidence was sufficient to support the verdict of the jury. It is true that the fraternity pin was hard to identify, by reason of its peculiar make and there being no special marks thereon, except the letter “B” which stood for the name of the fraternity; but the circumstances proven were sufficient for the jury to find that the pin was the property of the prosecuting witness, and Ave Avould not be justified in setting this verdict aside for the want of sufficient evidence.

In the information filed in this case, it is alleged that defendant received this property from one “John Doe, whose true name is unknown to informant.” But it is also alleged that the property was the personal property of and had been stolen from one A. B. Butler.

It is contended by defendant that it is necessary to allege the name of the party from whom the stolen property is received, if known, and that this is a material allegation, and must be proven as alleged. The cases cited by defendant do not sustain this contention, as applied to the facts here. The name of the party from whom the property was received was unknown, and this fact is alleged in the information. The defendant, while on the witness stand, testified that he did not know the name of the party from whom he received the property. If he did not know Ms name, after seeing and dealing with him, how could it be expected that the state would know his name? Where the name of the party from whom the property was received is unknown, that fact may be alleged in the information and proven as any other fact.

In the trial of this case, the court permitted the state to read a telegram from J. Edgar Hoover of the P. B. I., which gave an outline of the different arrests and charges against the defendant. He also admitted certain letters received by the defendant from the Treasury Department, United States Mint Service, Denver, Colorado. Both the telegram and letters were incompetent. But the court seemed to think if he admitted one, he should admit all. In view of the testimony of the defendant himself, we do not think the defendant was prejudiced by the introduction of the telegram. The introduction of incompetent evidence is not always error for which a case will be reversed. Jones v. State, 77 Okla. Cr. 285, 141 P. 2d 109; McKee v. State, 75 Okla. Cr. 389, 132 P. 2d 173; Sands v. State, 61 Okla. Cr. 206, 67 P. 2d 62; Suggs v. State, 46 Okla. Cr. 340, 285 P. 985; Pruitt v. State, 43 Okla. Cr. 420, 279 P. 707; Mayse v. State, 38 Okla. Cr. 144, 259 P. 277; White v. State, 34 Okla. Cr. 424, 246 P. 1114, 1115.

The defendant must show that he was prejudiced by the introduction of the evidence. The defendant himself testified that he had been arrested, tried and convicted on three previous occasions.

It is next contended tli^t the court erred in giving instruction No. 7, which it is unnecessary to quote, and that by reason of a former decision of this court (Rice v. State, 60 Okla. Cr. 398, 64 P. 2d 1240, 1243) this case should either be reversed or modified. We have carefully examined the instructions in the Eice Case and the instant case. It is the general rule that the instructions will be examined as a whole. It will be noted that in the Eice Case it was said:

“The jury was nowhere instructed as to the punishment provided by the statute for burglary in the second degree. We think the jury should have been so instructed.”

The record in the instant case reveals that the court fully instructed the jury as to the crime of receiving stolen property in instructions Nos. 2 and 4, and told them if defendant was found guilty, he could be punished “by imprisonment in the penitentiary not exceeding five years, or in the county jail not exceeding six months, or by a fine not exceeding $250, or by both such fine and imprisonment.”

In instructions Nos. 3 and 5 the jury was instructed with reference to the introduction of evidence of prior convictions, and that this evidence was not to be considered by the jury as to the guilt or innocence of the defendant of the crime of which he stood charged, but should only be considered with reference to “fixing his punishment in this case, in the event you find and believe beyond all reasonable doubt, that he is guilty in this case.”

It will thus be seen that an examination of the instructions as a whole reveals that they fairly presented the law and the issues in this case.

It is further contended that the remarks of the assistant county attorney, in his closing argument, is cause for reversal of this case. The argument complained of does not appear in the record. The only reference thereto is by affidavit of defendant attached to the motion for new trial. This does not comply with the law as to the manner of taking exception and saving the record. For this reason this error may not be considered.

Objection is also made to the opening statement of the assistant county attorney. This was with reference to the allegations in the information charging previous convictions of the defendant, and wé have already discussed this proposition.

Considering all of the facts and circumstances of this case, we find that the sentence given by the court was not excessive.

Finding no error, the .judgment and sentence of the-district court of Tulsa county is affirmed.

JONES, P. J., concurs. DOYLE, J., not participating.


author: JONES, P. J.

text:
    GEORGE LONG v. STATE.
    No. A-10231.
    Sept. 20, 1944.
    (152 P. 2d 122.)

      C. E. Castle, of Wagoner, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, George Long, was charged in the county court of Wagoner county with the unlawful transportation of intoxicating liquor; was tried, convicted, and sentenced to serve 30 days in the county jail and pay a fine of $100 and costs, and has appealed.

The only issue presented is whether the evidence is sufficient to show an unlawful transportation.

Two police officers in the city of Wagoner were driving an automobile in the colored section of that town. As they approached a certain house, they saw the defendant and one or two others sitting in the front yard near a porch. As they approached the gate, the defendant jumped up from his chair and ran into the house. The officers jumped from their automobile, and one started around the house in one direction, and the other started in the other direction. The chief of police testified that as he came around the house, he saw the defendant with a pint bottle in one hand and a half-pint bottle in the other near the back porch pouring a liquid out of a bottle. He seized the bottles and saved about half of the liquid which was sent to the State Laboratory for a test. The State Chemist testified that he made an analysis of the liquid and that it was a liquor that is commonly known as “choc beer,” and that at the time the analysis was made, about four months after the liquid had been seized, that it contained approximately 35% alcohol by -weight. Neither of the officers saw any liquor in defendant’s possession until they saw him pouring out the liquid in the back yard. The defendant testified that he had purchased the liquor and left it setting in the kitchen. When the officers stopped, he ran into the kitchen, grabbed the liquor, stepped onto the back porch, and commenced .pouring it onto the ground. According to his testimony, he was standing on the porch pouring out the liquor when the officers arrived.

Under the above facts, was there an unlawful transportation contrary to our statute. We do not think so. The statute under which this prosecution was instituted, 37 O. S. 1941 § 1, provides: “It shall be unlawful * * * to ship, or in any way convey, such liquor from one place within this state to another place therein * * In Proctor v. State, 8 Okla. Cr. 537, 129 P. 77, we held that as one of the essential ingredients of the offense of the unlawful transportation of intoxicating liquor there must be a conveyance to a place beyond the premises of the defendant. '

In the case of Wilder v. State, 34 Okla. Cr. 291, 246 P. 660, 661, it is stated:

“The gist of the offense charged is the conveyance from one place to another ‘place.’ The word ‘place’ has a variable meaning. As used in the statute it means region or locality.”

In DeGraff v. State, 2 Okla. Cr. 519, 103 P. 538, it is held that the removal of intoxicating liquor from one room in the house to another room in the same house is not an offense within the meaning of the law. See, also, Davis v. State, 38 Okla. Cr. 39, 259 P. 172; Glass v. State, 36 Okla. Cr. 279, 253 P. 1037; Gore v. State, 50 Okla. Cr. 84, 296 P. 522; Nowlin v. State, 43 Okla. Cr. 305, 278 P. 398.

In the case of Glass v. State, supra, the facts were more nearly like the facts in the instant case than that of any other case which we have found. There the defendant. saw some officers coming, dismounted from his horse in the rear of his house, entered the back door, came out with a bottle of liquor and broke it on the wheel of a car parked about eight feet from the door. The conviction was reversed because of the insufficiency of the evidence to show an unlawful transportation within the meaning of the statute.

The above cases illustrate the distinction which may be drawn between those cases and the many other cases in which we hold that the distance liquor is conveyed over a state or public highway is immaterial, if the moving of the intoxicating liquor is for an illegal purpose.

Every case must be decided upon its own particular facts. Here the quantity and quality of liquor weakened the state’s case. There was an insufficient quantity to make a prima facie case of unlawful possession, and, measured by the authorities above cited, the evidence of the state was insufficient to show an unlawful transportation. The cause is reversed and remanded with instructions to discharge the defendant.

BAREFOOT, J., concurs. DOYLE, J., not participating.


text:
    O. E. “STEVE” HAMILTON v. STATE.
    No. A-10319.
    Sept. 27, 1944.
    (152 P. 2d 119.)
    Brown & Cund and Jerome Sullivan, all of Duncan, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, O. E. “Steve” Plamilton, was charged by information filed in the district court of Stephens county with the larceny of a cow; was tried, convicted, and sentenced to serve three years in the State Penitentiary, and has appealed.

In order to properly consider the assignment of errors presented in defendant’s brief, it is necessary to make a short review of evidence.

O. W. Best testified that he lived in Duncan, about a block and a half from defendant; that he owned a motley faced coav which he kept tied to a tree Avest of the house, that the coav Avas stolen between the 12th and 14th of January, 1942; that it was later recovered at Marion Taylor’s, about 15 miles northeast of Duncan, approximately three weeks after the cow had been stolen.

Elmer Zigler, sheriff, and W. L. Dixon, deputy sheriff, testified to substantially the same facts. That is, that they were notified of the theft of the Best cow; that they located the coav the latter part of January at Marion Taylor’s place; that this place Avas rough and wooded, and about two miles off any public, traveled road; that the cow Avas in a lot Avith another stolen coav belonging to Tom Haves; that the defendant Avas arrested and told them that a certain coav he had sold in Lawton, at the community sale, was obtained by him from Marion Taylor.

J. TT. Litton testified that he operated a sales barn at LaAvton; that on January 13, 1942, a yelloAV Jersey cow A\Tas sold through his auction sale for $44.13; that the coav liad been cheeked in at the sale by Steve Hamilton, and he introduced in evidence a check in the sum of $44.13, issued to Steve Hamilton and endorsed by him in payment of the coav.

Donald Taylor testified that he was 18 years old, and the son of Marion Taylor; that the farm on which they lived belonged to Steve Hamilton’s parents; that early in the morning before daylight, on January 13, 1942, the defendant and Carl Maloney came to his house in a red pick-up truck with a motley faced cow and put her in the lot; that it ivas the same cow that Mr. Best and the sheriff later took away; that when the defendant and Carl Maloney left there, they took with them his father’s cow.

Carl Maloney, who was jointly charged with the defendant, testified that he and the defendant were good •friends; that the defendant wanted to buy a pick-up truck, but the automobile people would not handle the papers for him, so the witness bought the pick-up and the defendant paid the $45 down payment on the pick-up; that about midnight of January 12th the defendant came to him and told him that he had a cow chained in his backyard and defendant wanted him to come along with the. pick-up and help him haul the cow out to Marion Taylor’s; that the defendant said the cow was loose and came to his place after dark and he had chained her in his backyard; that after talking to the defendant, the witness went over to the defendant’s house and stayed until about 2 a. m.; that they, then, left and drove to the Taylor place and sat in the truck for quite a while waiting for daylight; that there was nobody at the Taylor house except the Taylor children; that as quickly as daylight arrived, they unloaded the Best cow at Taylor’s and took the Taylor cow to Laivton; that the defendant sold her and came back and told Mm that the cow brought $40; that defendant gave him $20 for his part of the job. The witness admitted that he had served a term in the penitentiary for burglary.

On behalf of the defendant, Cecil Teague testified that he was a cab driver in Duncan; that he stayed all night with the defendant the night of January 12, 1942; that early the next morning, Carl Maloney came by in a pick-up truck and asked him and tlie defendant to go with him out in the country; that Maloney had a cow in-the pick-up; that the defendant went with Maloney, but he did not go.

The defendant testified that he Avas 24 years of age and had lived in Duncan all of his life; that he was well acquainted with Carl Maloney and had loaned him money at different times; that he had loaned him money to make a down payment on the pick-up Avhick Maloney drove; that about 4:80 or 5 o’clock a. m., on Tuesday, January 13th, Car] Maloney came by his house driving the pick-up A'/ith a coav loaded in the pick-up; Maloney asked the defendant to go with him to Marion Taylor’s; that Maloney stated he had traded coavs Avith Marion Taylor, and he Avent along Avith Maloney; that they left the coav which Maloney had in the pick-up at Taylor’s place, and took the Taylor cow, but after they left Taylor’s place, he bought the Taylor cow from Maloney for $40 and took her to the auction sale at Lawton, and sold her there as testified to by the Avitness Litton. The witness further testified on direct examination that he had never been arrested nor convicted of any crime, except that he had been arrested upon investigation in connection Avith the drowning of a boy in Comanche. On cross-examination, the record discloses the following:

“Q. I will ask you if you haven’t got a case pending for stealing a marc? Mr. Brown: We object to that as incompetent, irrelevant, and immaterial, and ask the court to instruct the jury not to consider it. By the Court: Sustained as to anything that transpired after this charge was filed. Mr. BroAvn: Exceptions. By Mr. Marmaduke (e.m. 65) : Q. You say that is the only time you have ever been Avith Carl? A. On a coav deal. Q. How about the mare deal? Mr. Brown: We object to that as incompetern, irrelevant, and immaterial. By the Court: Sus-, tained.”

It is first insisted that the county attorney was guilty of prejudicial misconduct by reason of the two questions ashed on cross-examination, as shown above. The first question above quoted in Avhich the county attorney asked the defendant if he didn’t have a case pending for stealing a mare was improper. However, there was some foundation for the asking of the second question by reason of the fact that the defendant had testified that he had never been with the codefendant Maloney at any other time, except in connection with the delivery to the Taylor farm of the Best cow. This appears to be another one of those cases where a county attorney almost gets into deep water by his superheated desire to convict the defendant. The state made out a clear case of guilt. No reasonable juror could have done other than find the defendant guilty under this record. The questions asked by the county attorney apparently did not affect the decision of the jury because they only returned the minimum punishment of three years’ imprisonment in the State Penitentiary. The record discloses that the codefendant Maloney, who testified for the state; entered a plea of guilty with the understanding that the county attorney would recommend seven years in the State Penitentiary. All this was before the jury.

We have stated in many decisions that the repeated asking of improper questions for the purpose of prejudicing the jury against the defendant would constitute reversible error.

In the case of Cook v. State, 36 Okla. Cr. 285, 253 P. 1029, 1031, it is stated:

‘Tt is an abuse of judicial discretion to allow questions to a witness which are manifestly calculated to ere-ate prejudice in the minds of tbe jury against the witness, and, if he be the defendant, influence them to find against him because of such prejudice.” See, also, Appleby v. State, 11 Okla. Cr. 284, 146 P. 228; Watson v. State, 7 Okla. Cr. 590, 124 P. 1101; Weitz v. State, 70 Okla. Cr. 35, 104 P. 2d 445.

The above two questions asked by the county attorney were the only ones which were the least bit objectionable to defendant’s counsel. The rest of his examination was perfectly proper and no objections were made to any other questions. After considering the nature of these two questions in connection with the other evidence, and the fact that objections were promptly sustained to the questions, it is our conclusion that they were not of such a prejudicial nature as to require a reversing of the judgment of conviction.

It is next contended that the court erred in not striking from the consideration of the jury the testimony of the witness J. W. Litton, for the reason that the evidence of this witness was wholly irrelevant and immaterial to the issues.

It was the theory of the state, sustained by the evidence, that the defendant took the Best cow to Taylor’s place and then took the Taylor cow to Lawton to the public sale. Litton’s testimony concerned the sale of the Taylor cow by the defendant. It appears that Litton’s testimony tied in with the evidence offered by Donald Taylor, and certainly is in corroboration of the testimony of the accomplice, Carl Maloney. This evidence was material to show all of the connection which the defendant had with this transaction. The defendant, Hamilton, admitted in his testimony that he was the person who sold the Taylor cow and tried to explain his connection. The evidence of the witness Litton was admitted without objection, and it was only at the close of Ms testimony that counsel moved that it be striken from consideration of the jury, for the reason that it was wholly irrelevant and immaterial and did not tend to prove or disprove any issue in this case. The court properly overruled the motion.

Lastly, it is contended that the evidence is insufficient to sustain the conviction, it being argued that the only evidence supporting the conviction is the testimony of the accomplice, and that there is not sufficient corroborating testimony. The corroborating evidence of the state showed defendant transporting the stolen cow to the farm of his parents in the night-time, under circumstances which were very peculiar and which were never satisfactorily explained by the defendant. We have held in many cases “where there is evidence in corroboration of an accomplice, tending to connect the defendant with the commission of the crime charged, the sufficiency of such corroborating evidence is for the jury.” Haas v. State, 37 Okla. Cr. 335, 257 P. 1115; Hathcoat v. State, 71 Okla. Cr. 5, 107 P. 2d 825.

We think under this record that the defendant would have been convicted without any testimony of the accomplice. His possession of the stolen cow, his admissions made to the officers, his confusng explanation as to his connection with the Taylor cow were all circumstances tending to show his guilt and are sufficient to sustain the judgment of conviction. The explanation of his possession and transportation of the stolen cow merely raised an issue for the determination of the jury.

Under the record, as we view it, we find no error of sufficient importance to require a reversal of the conviction. The judgment is affirmed.

BAREFOOT, J., concurs. DOYLE, J., not participating.


text:
    ERNEST L. TAYLOR v. STATE.
    No. A-10287.
    Sept. 27, 1944.
    (152 P. 2d 123.)

      H. H. Cook, of Atoka, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and W. H. Parker, Co. Atty., of Atoka, for defendant in error.
   BAREFOOT, J.

Defendant, Ernest L. Taylor, was charged in the district court of Atoka county with the crime of larceny of livestock, towit: “one mottle faced red steer, three years old, marked crop underneath each ear and branded X on left shoulder,” the property of Curtis Noel. He was tried, convicted, sentenced to serve a term of three years in the penitentiary, and has appealed.

Defendant relies for reversal of this case upon two propositions:

“(1) That although defendant’s bond was returnable on the first Monday in January, 1942, defendant was forced to tidal by the court in December, 1941.
“(2) That the evidence is wholly insufficient to support the verdict and judgment herein.”

With reference to the first proposition, the record discloses that this prosecution was instituted in the district court of Atoka county on November 13, 1941, by the county attorney filing an information against the defend-, ant. The record does not disclose any of the proceedings or papers filed in the preliminary examination, except the bond, which is attached to a motion for continuance.

When the case ivas called for trial in the district court on December 5, 1941, a motion for continuance was filed by defendant, by reason of the absence of a witness, Si Wilson. Attached to the motion is a copy of the bond approved by the county judge of Atoka county on November 12, 1941, and filed in the office of the court clerk of Atoka county on the same date. In the affidavit of the defendant, atttached to the motion, it is stated that the bond of defendant as “fixed and approved by the county judge of Atoka county, Oklahoma, requires the appearance of this defendant in this court on January 5, 1942.” That by reason of this provision, this defendant could not be tried in the district court prior to that date.

The record further discloses the following order made and entered on the 25th day of November, 1941 :

“Now on this 25th day of November, 1941, the defendant being personally present in open court for the purpose of arraignment, waives arraignment and enters a plea of not guilty.”

From the above record it is contended that the defendant could not be tried prior to January 5, 1942, the date set for his appearance in the appearance bond fixed by the county judge, acting as an examining magistrate.

We do not find that this exact question has ever been presented to this court.

An examination of the statutes reveals that 22 O. S. 1941 § 264 provides:

“If, however, it appear from the examination that any public offense has been committed, and that there is sufficient cause to believe the defendant guilty thereof, the magistrate must in like manner indorse on the complaint an order signed by him to the following effect:
“It appearing to me that the offense named in the within complaint mentioned (or any other offense, according to the fact, stating generally the nature thereof), has been committed, and that there is sufficient cause to believe the within named A. B. guilty thereof, I order that he be held to answer the same.”

And § 266 of such. Title is as follows:

“If the offense is bailable, and bail is taken by the magistrate, the following words, or words to the same effect, must be added to the indorsement mentioned in the second preceding section: And I have admitted him to bail, to answer, by the undertaking hereto annexed.”

It is also provided by 20 O. S. 1941 §§ 95 and 96, as follows:

“§ 95. Two regular terms of the district court shall be held each year in each county of this state. The time of commencing or convening these two regular terms in each county shall be on the first Monday in January and the first Monday in July in each year. Each regular term shall commence and convene by operation of law at the time herein fixed without any act, order, or formal opening by the judge or. other official thereof, and shall continue and be open at all times until and including the day preceding the next regular term, on which day it shall expire and adjourn sine die by operation of law.”
“§ 96. Jury sessions of the district court may be held at any time during a regular term upon order of the judge thereof as now provided by law; and, a motion, equity or non-j ary session of the district court shall be held in each county at least once every 60 days, the date or dates thereof to be fixed by the judge in hjs discretion.”

According to one of the general rules of construction of statutes, these statutes should be so construed as to give validity to all, if it can be done. It is unnecessary to give a detailed history.of the statutes of this state with reference to the time of holding terms of court. The sections of the statute above quoted (Tit. 20, §§ 95 and 96) are the statutes in force at this time. They were adopted by the Legislature in 1935, and have never been construed by this court. They provide for the holding of two terms of court each year, the first to begin on the first Monday in Jan-nary and for a period of six months, and the second on the first Monday in July, for a period of six months. Section 90 provides: “Jury sessions of the district court may be held at any time during a regular term upon order of the judge thereof as now provided by law.” Under this provision, there can be no doubt of the legality of the term of court held in Atoka county in December, 1941. It was a regular term of court.

Under 22 O. S. 1941 § 264, as above quoted, the procedure to be followed by the examining magistrate when he finds an offense has been committed is set out in full. It will be noted that the statute nowhere provides for the examining magistrate to set the date of the appearance of an accused in the district court. When the magistrate has completed the examining trial, and has forwarded the papers filed in his court, with his transcript to the district court, as provided by 22 O. S. 1941 § 276, his duties have ended, and upon the filing of an information by the county attorney in the district court the defendant then becomes amenable to the jurisdiction of the district court; and that court having the power under the statute to set a jury term of the court, the defendant may be placed on trial even though it be before the time set by the examining magistrate for his appearance.

Of course, the defendant would have the right to file a motion for a continuance on the ground that he did not have time to prepare for trial; or by reason of the absence of a material witness, as was done in the instant case. Such motion would be acted upon by the court in the manner provided by law. But the mere fact that the examining magistrate had placed an exact date in the bond for the appearance of the defendant would not, as a matter of law, prohibit the trying of the defendant at a regular term of the court fixed in the manner provided by law, at an earlier date.

With reference to the motion for continuance because of the absence of the witness Si Wilson, it may be stated that there was nothing to show diligence on the part of the defendant to secure the attendance of this witness. The motion was not filed until the 5th day of December 1941. This case was set for trial for December 3, 1841, and the trial started on December 5th. No subpoena had been issued for this witness. The defendant was not confined in jail, but had been at large on bail since November 12, 1941. The evidence of the witness was upon a point immaterial to the guilt of the defendant, and the trial court permitted the statement of the witness as contained in affidavit of defendant to be read to the jury, as his testimony, if he had been present. It was cumulative to other testimony offered by the defendant. Under the circumstances, we are of the opinion that the defendant was in no way prejudiced by the absence of this witness, and that the court did not err in overruling the motion.

It may be said that the question of whether the bond of defendant could have been forfeited for the nonappearance of the defendant at the December, 1941, term of court, and his sureties held liable by reason of his failure to appear, is not passed upon because it is unnecessary to do so. The record in this case reveals that defendant was brought before the court on November 25, 1941, after the information was filed in the district court; that he waived arraignment at that time, and entered his plea of not guilty. His case was set for trial for December 3, 1941. The authorities cited by defendant in support of his proposition all have reference to cases in which the question was raised where an attempt was being made to hold the sureties upon the forfeiture of a bail bond.

In the case of Louisiana v. Briggs, 34 La. Ann. 69, the court had under consideration a case where the facts are almost identical with those in the case at bar. It was there said:

“The offense charged against the defendant is ‘punishable with imprisonment in any parish prison or in the penitentiary at the discretion of the court for not more than two years,’ and as it is not an offense the penalty of which is _ necessarily imprisonment at hard labor, it is clearly covered by, and can legally be tried and disposed of under the provisions of Act No. 35 of 1880; and this case cannot be excepted from the operation of the law, because the accused was under a bond to appear at the regular jury term in December, 1881.
“The argument of the defendant’s counsel that the execution of such a bond operated as a contract between the accused and the state, under which the state was debarred of the right of calling him to trial at an earlier date, is not serious, and cannot be entertained for a single moment. The bond must be construed as having been furnished and accepted, with reference to the provisions of the Constitution and laws of the state touching the trials of such eases; and under which it must have been known to the accused, that his trial might, in the discretion of the district judge, be ordered to take place at another but a regular jury term, and that in his own interest, to secure him a speedy trial, the judge had the power to fix an earlier day for his trial.
“In the case of the State v. White, recently decided at Shreveport (33 La. Ann. 1218) we had occasion to examine into, and to fully consider the provisions of the article of the Constitution, and of the law, now under consideration; and to explain the object proposed by the legislation, as well as the means pointed out for its execution. Both on principle and on the authority of that case, we must uphold the district judge in trying the accused under the provisions of Act 35 of 1880.”

As to defendant’s contention that the evidence was insufficient to sustain the judgment and sentence, the record reveals that defendant resided near the town of Bruno, four and a half miles east of Atoka. That sometime early in October, 1941, a mottled-faced red steer, three years old, branded X on the left shoulder came to his place, being some time in the road and part of the time in his pasture. Defendant loaded this steer into his truck in the early morning of October 4, 1941, and took it to Hugo, in Choctaw county, to- the sales ground, where he offered it for sale. He was frustrated in this attempt by the officers, and was charged with the theft of the steer. At the time of his arrest he claimed that he had bought the steer from one Joe Edings. The officer who arrested defendant had him place the steer in his truck for the purpose of taking it back to Atoka, in Atoka county. The steer was the property of Curtis Noel, who owned the DON Ranch in Atoka county, and the-steer had strayed from that ranch. On the return trip to Atoka the officer permitted defendant to go by his home, and the officer testified to the following conversation between the defendant and his wife and son: “You know that steer was like you said, it might be stolen. You seen me pay for the steer.” To which his wife replied: “No, I didn’t see the man.” That the defendant then called to his son and said: “You know when I paid for the steer?” And the boy answered: “No, I didn’t see you.”

Defendant’s wife and son testified at the trial, and denied having this conversation.

When the defendant Avas returned to Atoka, the sheriff of the county had Joe Edings brought to the county jail and confronted by the defendant, and defendant said: “You know I bought that steer from you, and I bought a cow from you in 1937 and 1938.” And Edings answered: “You are a damn liar, you never bought anything from me.”

The witness Joe Edings testified at the trial, and his testimony was that he did not sell the steer to defendant, and did not sell him a cow in 1937 or 1938; and that he had had no transactions of any kind with the defendant Avith reference to the sale of livestock.

Defendant testified that he saw the witness Joe Edings in Atoka on the 25th day of October, 1941, and told him about the steer being at his place, and that Edings told him it was his steer. That he offered to buy it, and that Joe Edings came to his home that night, and he bought the steer from him, and paid him |55 therefor. He was corroborated in this testimony by his wife and son, although they did not see Edings, but heard the conversation, and defendant came in the house and got the money out of a purse to pay for the steer.

Jack Province testified that he loaned the defendant |20 to buy the steer.

There Avas also testimony of a number of Avitnesses by the state that the witness Joe Edings was at home sick on the 25th day of October, 1941, and did not go to Atoka that day, this being the day defendant testified he had agreed to buy the steer from him. Several Avitnesses testified for the defendant that they saw Joe Edings in Atoka on October 25, 1941, and one of the Avitnesses testified to seeing the defendant talking with him.

Curtis Noel testified to the oAvnership of the steer, the familiarity of his brand in the neighborhood, and of never having given his consent to the taking of the same.

From the above statement, it will at once be seen that there was a direct conflict in the testimony. The evidence of tbe state was sufficient if believed by the jury, to sustain the conviction. Under the many decisions of this court wre have adhered to the rule that a case will not be reversed for insufficiency of the evidence where there is a direct conflict, and the evidence of the state is sufficient to sustain the judgment and sentence. It is only when the evidence is insufficient to sustain the judgment and sentence that the case will be reversed.

There was evidence that the witness Joe Edings had been convicted and served a term in the penitentiary for the larceny of cotton; and that the defendant had been convicted and served a sentence in the Federal Penitentiary at Leavenworth for a violation of the prohibition laws. This evidence was admitted only for the purpose of affecting the credibility of the witnesses, and the jury was so instructed. •

The jury in returning its verdict made a recommendation that the sentence of defendant be suspended. The trial court, as it had a, right to do, did not follow this recommendation, but sentenced the defendant to serve a term of three years in the State Penitentiary.

Finding no error in the record, we are of the opinion that the judgment and sentence of the district court of Atoka county should be affirmed. It is so ordered.

JONES, P. J., concurs. DOYLE, J., not participating.