author: DAVENPORT, J.

text:
    JESSE M. ROSS v. STATE.
    No. A-6441.
    Opinion Filed March 16, 1929.
    (275 Pac. 401.)
    Ross Rizley and E. B. McMahan, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted in the district court of Cimarron county, of the larceny of a hog, and was sentenced to imprisonment in the state penitentiary for a term, of three years. Motion for new trial was filed and overruled, exceptions saved, and appeal taken to this court.

The testimony in subtsance for the state is as follows: Phillip Sehrier testified he lived in Cimarron county on or about the 11th day of March, 1926; that he was sick at the time; that when he last saw the hog that is alleged to have been stolen was on Wednesday night prior to its being killed on Friday; that the hog had been castrated on Sunday prior to the time it was alleged to have been killed; that they broke off one of his tusks so he could not cut the other hogs; the hog weighed between 250 and 300 pounds; that he learned from his son Harold Sehrier the hog had been killed. “I do not know what time the hog was killed, I did not consent to any one taking the hog or killing it.”

On cross-examination witness stated that defendant lived about two miles from him; he had known defendant for three or four years; they were pretty good neighbors until last winter, when the case of Jess Lovitt came up, since that time he was not mad, but “we were not very good friends.” Witness was then asked, “You had a school fight up down there too, didn’t you?” To which the state objected as immaterial, and the court sustained the objection. The question was then asked, “Isn’t it a fact this defendant was responsible in some degree in getting your son discharged from driving the truck which carried the school children to school?” The state objected as incompetent, irrelevant, and immaterial, and the court sustained the objection. Defendant excepted. “All I know about the hog disappearing my children told me; I helped castrate the hog and break the tusk on Sunday before he was reported to be gone the following week; the tusk was broken off with big wire pinchers.”

Willie Sehrier, called as a witness, testified: He was 20 years old. That Phillip Sehrier was his father. That he was at home on the 11th day of March, 1926. That his father owned a big, black stag hog. That on the 11th day of March the hog was gone out of the pen, and he went to the northwest corner of the pen, and found the intestines of the hog, and found where he was dragged through the fence. There was blood on the other side of the fence, and the horse tracks went east from there and turned north down the fence to the southeast corner of the section toward defendant’s house. He corroborated his father as to the breaking of the hog’s tusk at the time they castrated him on Sunday, when the hog was missed, and the probable weight of the hog. That it rained a couple of days before, and the soil was wet when they missed the hog. He followed the tracks from where he first discovered them down to the gate of the defendant. After he found the tracks on Saturday, he phoned Mr. Barrick. He called the sheriff about 4 o’clock in the afternoon, and the sheriff came out himself, and then went back and got a search warrant. On Monday afternoon when the parties got out he went with them, and they tracked the man’s track, and the horse tracks. They went down to the place where defendant lived. “We found some back bones and spare ribs.” This was objected to for the reason it had not been shown they had a search warrant, and the search, if any was made, was under an illegal search warrant. Objections were overruled, and defendant duly excepted.

Testimony was then introduced as to the lower jawbone of the hog which was found in front of the door of the defendant, to which the defendant objected, and the objection was overruled, and defendant excepted. “We found some bones of spare ribs, that is, some bones that had been cooked, we found horse tracks, one foot of which made a crooked track in the ground; there was a white horse at defendant’s which made the same kind of a track; we also found a sack and rope which had blood on them; the tracks were visible, it had snowed in the meantime but the man’s tracks we discovered were just like the defendant’s. I sifted the dirt and found the piece of tusk which was broken off; I found it the following Friday after the hog was missed and brought it to the sheriff.” Defendant had on a coat, and the sleeves had some blood on them. Loving claimed the coat, but he said he did not know anything about the blood. The defendant was present when Loving claimed the coat.

On cross-examination he claimed he had known the defendant for three or four years. He used to drive a school truck in the vicinity where defendant lived. Witness was then asked, “And you lost the job, didn’t you?” The state objected on the ground that it was incompetent, irrelevant, and immaterial. The court sustained the objection, and defendant excepted. Witness was then asked if he had not been mad at the defendant ever since he lost the job, and the same objection was interposed as was interposed to the previous question, and the court sustained the objection. The defendant then made an offer, for the purpose of showing the credibility of the witness, that bad feeling existed, and that witness was a son of the prosecuting witness, and that for some months previous to the time of the larceny of the hog in question this witness was driving a truck hauling school children to school in that vicinity; that some time prior to his obtaining the job as truck driver the defendant in this case had been a witness in a case in which the prosecuting witness in this case was interested, and that, by reason of the relationship growing out of that lawsuit, this witness refused to haul the children of the defendant to school in the truck; that defendant complained to the school board, and as a result the school board canceled the employment of this witness, and that by reason thereof they have not been friends since. The state objected to the offer made by the defendant, which objection was sustained, and defendant duly excepted. Witness stated he saw the hog on Tuesday. Some time about 11 o’clock Thursday he missed the hog, when he went out to water them. “When I missed the hog I went to looking for tracks and I found them; I could tell where the hog had been taken out under the wire and I found the intestines, heart and liver. I followed the tracks a little ways and then came back to the house; the tracks went east down the hog fence.”

The state further introduced testimony tending to show that a part of the hog’s jaw was found on the premises of the defendant. The sheriff testified he had a search warrant, and that, when defendant’s home was searched, he found a sack with some blood on it and some white hairs, and a rope with some blood .on it, and some bones, looked like the ribs of a hog and some backbones. The sheriff on this search was accompanied by other witnesses who testified to the same facts as did the sheriff. Evidence of tracks was introduced attempting to show they corresponded with the defendant’s track, but there had been considerable snow and some rain the night the hog was stolen, the night before the tracks were found by the sheriff and the other witnesses. The evidence of the state is wholly circumstantial. The defendant, as a witness in his own behalf, denied any knowledge of the hog being stolen, or having anything to do with the stealing of the same. He contended there was ill feeling against him by Phillip Schrier and his son Willie Schrier, because of his having been a witness against Phillip Schrier and having reported Willie Schrier to the school directors because he would not haul those who were going to school who lived with the defendant. The defendant by two witnesses proved that on the night of the alleged larceny of the hog he was at his home. Artie Weldon slept in the same bed with him, and Irene Staggs slept in the bed with defendant’s mother in the same room. Both testified that defendant went to bed before they did, and was there the next morning; Artie Weldon testifying he slept in the front of the bed, and that defendant did not leave the bed during the night.

Several witnesses testified that a half-brother of the defendant, Ben Staggs, the Saturday evening after the hog was alleged to have been stolen on Thursday, came to defendant’s house and brought him some spare ribs and a, hog’s head and backbones; they were cooked and eaten at defendant’s house; that the bones the sheriff and his men found were probably the bones from which the meat had been eaten that was brought to the house by Ben Staggs, the half-brother of the defendant, whose home was given as Dalhart, Tex.

On cross-examination by the state, the witness Phillip Sehrier was asked:

“Did he visit in your home and you visit at his home? A. We did not visit, but we were pretty good neighbors, I thought he was a good neighbor.
“Q. You thought he was until when? A. Until last winter when the case came up in which Jess Loving —up until that time we was good friends.
“Q. And since that time you have been on friendly terms? A. We was not mad, we were not just good friends, we just let each go his own way.
“Q. You had a school fight down there too, didn’t you?
“By Mr. Sweet: Objections, that is immaterial.
“By the Court: Sustained.
“Q. Isn’t it a fact that this defendant was responsible in some degree in getting your son discharged from driving the school truck?
“By Mr. Sweet: Objected to, that is incompetent, irrelevant, and immaterial.
“The Court: Sustained. (The defendant excepts.)”

The defendant on cross-examination propounded the following questions to Willie Schrier:

“Q. You used to drive the school truck in your vicinity? A. Yes, sir.
“Q. You lost your job didn’t you? (Objected to as incompetent, irrelevant and immaterial, by Mr. Sweet.)
“The Court: Sustained. (The defendant duly excepted.)
“Q. And you have been mad at the defendant ever since you lost that job? (Objected to by Mr. Sweet, as incompetent, irrelevant, and immaterial.)
“The Court: Sustained.”

Offer was then made to show, as a part of the cross-examination of Willie Schrier, for the purpose of showing his credibility, that a bad feeling existed between the defendant and this witness; that for some months previous to the time of the larceny of the hog in question that this witness was driving a school truck, hauling the children in the vicinity to school; that some time prior to his obtaining the job as truck driver the defendant in this case had been a witness in a case in which the prosecuting witness in this case was interested, and that, by reason of the relationship growing out of that lawsuit, this witness refused to haul the children of this defendant to school in the truck; that defendant complained to the school board, and, as a result, the school board canceled the employment of this witness, and by reason thereof they were not very good friends since. The state objected on the ground that it was incompetent, irrelevant, and immaterial, and the court sustained the objections.

When the defendant went on the stand, he offered to prove the same facts as to the ill feeling between Phillip Schrier and Willie Schrier and himself, but the state objected, and the objection was sustained, and defendant excepted. Sheriff Barrick was recalled for further examination, and was asked if he went back down to the defendant’s house some days after he was down there about the 17th of March, and that he smelled something like fresh lard. The testimony on behalf of the defendant was that one of the ladies was making soap, and the witness went into detail as to how the soap was being made. The sheriff was also asked regarding a conversation he had with the defendant about the 16th of March, 1926, and he said, “I and Mr. Shaw went to the jail and Mr. Shaw asked Mr. Ross where the rest of the hog was, and I said, ‘You just as well come clean because I have been to Dalhart, Texas.’ ”

At this point defendant objected to what this witness may have said about anything happening in Dalhart, that is, just getting in what he tried to yesterday. The court overruled the objection, and defendant duly excepted. “A. Mr. Staggs told me he did not bring any meat to your place.” The defendant objected to what he said ¡Staggs told out of the presence of the defendant.

“The Court: That is what you told the defendant? A. Yes, sir.
“The Court: Overruled. (The defendant excepts.)”

The defendant then moved that the testimony of the witness Barrick relative to the last conversation that took place at Dalhart be stricken as hearsay; it being out of the presence of the defendant and being incompetent, irrelevant, immaterial and prejudicial.

“The 'Court: That is what he told the defendant? (Objections. Overruled.)
“Mr. Ri’zley: I mean the conversation he had wasn’t in the presence of the defendant, the jury isn’t taking the conversation but only what the witness told the defendant about it, and that is competent.
“Mr. Rizley: Exceptions.”

The foregoing is all the testimony we deem necessary to set out to arrive at the proper decision in this case. Plaintiff in error assigns several separate and distinct errors alleged to have been committed by the trial court. First, it is urged by the defendant that the trial court erred in refusing to permit the plaintiff to introduce legal and competent evidence on behalf of his defense in said cause. On cross-examination of Phillip and Willie Schrier the defendant attempted to show that the witnesses were prejudiced against him by reason of a lawsuit in which he was a witness, and the court sustained the objection to the questions of the defendant, and would not permit him to go into the question of the bias or prejudice on cross-examination.

In Castleberry v. State, 10 Okla. Cr. 504, 139 P. 132, the court said:

“The state has the right, on cross-examination, to show the nature of the relations existing between the witness and the defendant, so far as their relations are such, as would create a bias that might reasonably be supposed to affect the credibility of the witness, and this rule cannot be changed by the fact that such evidence would probably prejudice the defendant in the minds of the jury.”

In Phillips v. State, 20 Okla. Cr. 415, 203 P. 902, this court in the sixth paragraph of the syllabus said:

“Questions may b© put to a witness, on cross-examination for the purpose of ascertaining his relations, business, social, or otherwise, with the accused. In this connection, it is proper to show on cross-examination the fact of immoral relations subsisting between the witness and the party for whom called.”

In Hennessee v. State, 29 Okla. Cr. 72, 232 P. 856, this court held:

“The defendant has a right, on cross-examination,' to show the nature of the relations existing between the prosecuting witness and the defendant, so far as their relations are such as would create a bias that might reasonably be supposed to affect the credibility of the witness” — citing with approval Smith v. State, 14 Okla. Cr. 349, 171 P. 341.

The conviction in this case in a large measure rested on the testimony of Phillip and Willie Schrier: at least their testimony is a large portion of the chain of circumstances upon which the conviction of the defendant is based. We hold that the jury were in all fairness entitled to know what the personal relation and feeling of these witnesses were against the defendant, in order to intelligently pass upon the credibility of the two prosecuting witnesses. Under the ruling of the cases cited the defendant was entitled to show upon cross-examination of the witnesses their interest in the case, their feeling toward the defendant, and their bias or prejudice against him, if any, and it was error for the court to refuse to permit the defendant to show by the witnesses their feeling against him.

It is further urged by the defendant that the court erred in giving his instruction No. 3%, which Is as follows:

“The state relies for a conviction upon ‘circumstantial evidence.’ Circumstantial evidence is the proof of certain facts and circumstances from which a jury may infer other connected facts which usually and reasonably follow, according to the common experience and observation of mankind.
“There is nothing in the nature of circumstantial evidence that renders it less reliable than any other class of evidence. In order to warrant a conviction, however, you should find that the circumstances concerning the crime charged are such as not only are consistent with the defendant’s guilt, but inconsistent with his innocence.”

The defendant contends that the above instruction is incomplete and not a proper instruction of the law on circumstantial evidence and the same is confusing to the average .mind of the juror, and that the court should have ■instructed the jury in connection with the instructions given,

“That in order to warrant a conviction the jury should find that the circumstances concerning the crime must be sufficient to exclude every reasonable hypothesis other than defendant’s guilt, and that the circumstances must be consistent with each other,”

This court has passed upon the question of an instruction upon circumstantial evidence several times, and has laid down rand defined what the proper instruction on circumstantial evidence should be, and it is the duty of the court, when it undertakes to give an instruction based upon any part of the evidence in the case, or any branch of the case, to make that instruction clear and properly declare the law. The instruction given in this case is not a complete and correct statement of the law on circumstantial evidence as applied to the facts as disclosed by the record, and should not have been given in the form it was.

In Baldwin v. State, 11 Okla. Cr. 228, 144 P. 634, this court held that an instruction upon circumstantial evidence should be substantially as follows:

“You are instructed that the state relies for a conviction in this case 'upon what is known as circumstantial evidence, and in this matter you are instructed that, to warrant a conviction upon circumstantial evidence, each fact necessary to the conclusion sought to be established (that is, the guilt of the defendant) must be proved by competent evidence, beyond a reasonable doubt, and that all the facts and circumstances proven should not only be consistent with the guilt of the accused, but consistent with each other, and inconsistent with any other reasonable hypothesis or conclusion than that of his guilt, and sufficient to produce in your minds the reasonable moral certainty that the accused committed the offense charged against him. And you are instructed that, when the circumstances are sufficient under this rule herein given you, they are competent and are to be regarded by the jury as competent for your guidance as direct evidence.”

The instruction given was improper and was prejudicial to the rights of the defendant, and did not state the rule of law correctly. The defendant in this case may be guilty, but, upon the trial of the case, he should be tried according to law, and it is the duty of the court to see that he is properly tried.

There are other errors assigned, but in the view we take, some are without merit, and it is not necessary to consider the others. The judgment is reversed, and the case remanded, with directions to the trial court to grant a new trial to be conducted according to law.

EDWARDS, P. J., and CHAPPELL, J., concur.


source: Caselaw Access Project

author: EDWARDS, P. J.

license: Public Domain

text:
    PATRICK O’BRIEN v. STATE.
    No. A-6404.
    Opinion Filed March 16, 1929.
    (275 Pac. 401.)

      R. R. Rittenhouse and W. R. Withington, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Lincoln county on a charge of having the unlawful possession of intoxicating liquor, and his punishment fixed at a fine of $250 and imprisonment in the county jail for a term of 90 days.

The record discloses that at the time charged defendant conducted a near beer place in the town of Davenport, and had partitioned in the rear of it a sleeping room in which he lived alone. Certain officers with a search warrant went to this place and made a search in the front part, but did not find anything. Defendant was locked in the rear room, and the officers heard what they took to be water splashing, and as they were about to break into the room, defendant opened the door; that the floor was wet, and they could smell liquor from the floor; and they found a half pint of whisky in a hat hanging on the wall and some empty bottles. One of the officers asked him how much he had poured out, and he answered a half gallon. Defendant did not take the stand and offered no evidence.

The first complaint is that the search warrant was invalid as having been based upon an insufficient affidavit for search warrant. The affidavit is not a model, but it sets out that the premises is a place frequented by the public and by persons known by affiant to be addicted to the use of intoxicating liquor; that persons reputed to be bootleggers and gamblers loitered around said place at all times of the day and night, and men were frequently seen around in an intoxicated condition; that liquors were kept therein by defendant to be sold, bartered, and given away.

The essential averments are made to procure a search, warrant. Upon this point it is also insisted that the warrant was for a building on lots & and 9, and that defendant occupied only a part of it, and that therefore the search warrant was general. The affidavit and warrant refer to defendant by name, and direct the search of said premises; the right of search is limited as to him. It may be inferred, though it is not shown, that no one else occupied the premises or any part of them. While the quantity of whisky found is less than the amount required to raise the prima facie presumption that its possession was illegal, we think the circumstances shown, with the statement of defendant that he had poured out a half gallon, is sufficient to sustain the verdict and judgment.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


author: CHAPPELL, J.

text:
    H. C. WORLEY v. STATE.
    No. A-6642.
    Opinion Filed March 16, 1929.
    (275 Pac. 399.)

      Pete Helton, Williams & Martin, and Arnold & Wood-ruff, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Adair county of the crime of arson and sentenced to serve a term of one year in the state penitentiary.

On the 2d day of December, 1926, the defendant was called for trial in this case, and he thereupon entered a plea of former jeopardy, which plea was denied by the court and exceptions taken.

The facts as they appear in the record are that an information was filed against the defendant in the district court of Adair county, charging that the defendant did on or about the 7th day of December unlawfully, feloni-ously, willfully, and maliciously commit the crime of arson, by then and there in the city of Stilwell, county of Adair, willfully burn, injure, and destroy certain goods, wares, and merchandise in the store operated by said H. C. Worley, said store being operated in a certain building in said city known as the' Jim Hill building, this cause being No. 646 in the district court of Adair county. On April 30, 1926, a jury found the defendant guilty and fixed his punishment at two years in the penitentiary. This case was appealed to this court and is now No. A-6421, 42 Okla. Cr. 243, 275 P. 398, which conviction has been affirmed by this court.

On the 19th day of February, 1926, an information was filed in the district court of Adair county charging the defendant, H. C. Worley, Luther Worley, and Hugh (Slim) Moore with the crime of destroying insured property which property was kept in the Jim Hill building in Stilwell, Adair county, Okla. When this case was called for trial the defendant entered a plea of former conviction and former jeopardy alleging that the facts in this case are the same as in case No. 646 tried in this court; that the grounds in this case wherein he is charged with destroying one of the buildings for which he was convicted in case No. 646 are the same grounds and the act or acts constitute one and the same crime. The defendant introduced in evidence Exhibit A-l, being the information in case No. 646. The defendant introduced Exhibit A-2, being the verdict of the jury in case No. 646. The defendant introduced Exhibit A-3 being the judgment and sentence of the court in case No. 646.

Defendant’s plea of former conviction and jeopardy was by the court overruled, and the defendant excepted. In the motion for new trial the defendant sets out as the first ground of error:

“The court erred in overruling and denying defendant’s plea of former conviction and former jeopardy to which the defendant duly excepted at the time.”

The defendant assigns, as his first ground of error in this court, the denying of the defendant’s plea of former conviction and former jeopardy.

The Oklahoma Constitution, art. 2 (Bill of Rights), § 21, says:

“No person shall be compelled to give evidence which will tend to incriminate him, except as in this Constitution specifically provided; nor shall any person, after having been once acquitted by a jury, be again put in jeopardy of life or liberty for that of which he has been acquitted. Nor shall any person be twice put in jeopardy of life or liberty for the same offense.”

Our Procedure Criminal provides, section 2350, C. O. S. 1921:

“No person can be subjected to a second prosecution for a public offense for which he has once been prosecuted and duly convicted or acquitted except as hereinafter provided for new trials.”

Section 2626, C. O. S. 1921, provides:

“When the defendant shall have been convicted or acquitted upon an indictment or information, the conviction or acquittal is a bar to another indictment or information for the offense charged in the former, or for an attempt to commit the same, or for an offense necessarily included therein, of which he might have been convicted under that indictment or information.”

It clearly appears from the record in this case and from the record in 'A-6421 that the charges arise out of the same transaction, act, or omission — namely, the unlawful burning oh a certain day and at the same time of a frame building and personal property contained therein. The burning of the building and of property contained in the building on the same day and at the same time constitute only one act for which the defendant could be criminally prosecuted.

The court erred in overruling the defendant’s plea of former conviction and former jeopardy. The cause is therefore reversed and remanded, with instructions to the court to dismiss the case.

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


text:
    H. C. WORLEY v. STATE.
    No. A-6421.
    Opinion Filed March 16, 1929.
    (275 Pac. 398.)

      Pete Helton, Arnold & Woodruff, and Williams & Martin, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Adair county of the crime of arson and sentenced to serve a term of two years in the state penitentiary.

The information in this case was filed by the county attorney on February 19, 1926, and sufficiently charges the crime of arson. In the regular order of business this cause would have come on for trial at the March, 1926, term of the district court of Adair county. It was originally assigned for trial on March 15, 1926. On March 12th it was reset for trial on March 29th. On March 28th, defendant filed a motion for a continuance, and on that day the motion was presented to the court and the case merely passed and reset for trial on April 28th. On April 28th, defendant filed another motion for continuance, which was overruled, and the defendant was required to go to trial over his objection on that day.

The first ground of error alleged by the defendant is that the court erred in overruling defendant’s motion for a continuance.

In the case of Johnson v. State, 1 Okla. Cr. 321, 97 P. 1059, 18 Ann. Cas. 300, this court held:

“When an application for a continuance is based upon the ground of want of time in which to prepare for trial, and it appears that the indictment against defendant has been pending for six or seven weeks during which time the defendant has been represented by counsel, the application is addressed to the sound discretion of the court, and his action is not subject to review, in the absence of a showing of abuse of this discretion.”

Defendant was represented by able counsel, and he had ample time to prepare for trial. The record discloses that the case was well tried by defendant’s counsel, and this court is of the opinion that no prejudicial error was committed by the court in refusing to grant the continuance.

The second assignment of error relied upon by defendant for a reversal of this judgment is: “The court erred in ordering and compelling the defendant to produce and submit certain insurance policies which were used as evidence on the part of the State in chief.” This assignment of error is predicated on the following record:

“A. V. Dawson, a witness for the state, being duly sworn to tell the truth, the whole truth and nothing but the truth, thereupon testifies as follows, to wit:
“Direct examination:
“Mr. Corley: Q. Mr. Dawson did you have any business transactions with Mr. Worley some time before the 8th day of December? A. Yes, sir. Q. What is the nature of it? A. Well; I trade some with him. Q. I mean with reference to insurance? A. Yes; wrote him spme insurance. Q. How much did you write him?
“Mr. Williams: Just a minute. We think the insurance policy would be the best evidence.
“Mr. Crowe: We state to the court that it is in the possession of the defendant or hi's attorney and we demand it and demand that it be offered in evidence.
“Mr. Helton: You have not served any notice or demand on us.
“Mr. Williams: We do not have it, I don’t think, your honor, and Mr. Dawson keeps a complete record and we ask that it be offered in evidence. (Argument.)
“Mr. Williams: Q. Don’t you make a record of every insurance policy you issue? A. Carbon copy of it. Q. Do you have that now? A. Yes, sir. Q. And you make another entry in a book showing the amount of the policy, who it is issued to, and when it expires and when issued, do you not? A. Well, not quite that complete, maybe. Q. But you have a record of it? A. Yes, sir.
“Mr. Crowe: Might I inquire of counsel and ask that they tell me whether they have the original policy?
“The Court: The original would be the best. If the defendant, or any of his counsel, have it we would like to have it produced here.
“Mr. Helton: I have not got it.
“Mr. Williams: I don’t know anything about it.
“Mr. Woodruff: If the court please, if Judge Arnold has it we will produce it, if that is the order of the court. Judge Arnold just happened to step out while ago — Mr. Dawson has a duplicate. All we have is a copy of what he has. Our contention is that we inquire of this witness from that, to produce the best evidence they have got and " it would not be anything else — and if we have anything else we will produce it. If I find we have it I will produce it, if that is the court’s order.”

It appears from this record that the defendant objected to the witness Dawson testifying from his records because the policy was the best evidence. The Attorney General, thinking the policy was in the possession of the defendant or his counsel, then demanded that they produce it.

Later this objection of the defendant was withdrawn, and the witness Dawson was permitted to introduce the duplicate of the policy in the possession of the witness. Dawson, together with the records covering the issuance of this policy, and the original policy was never produced by this defendant. It appears from the evidence offered later that the witness Hughes had been appointed receiver of the property and assets of the defendant and that these insurance policies were in the hands of such receiver. The state had a subpoena out for Hughes, and the court could have required him to produce the original policies. Pending the taking of the witness stand by Hughes, one of defendant’s counsel got possession of the other insurance policy, which rightfully belonged in the possession of Hughes, the state’s witness. When demand was made for the production of this policy, defendant’s counsel objected to producing the policy except on the order of the court, and now predicate eir-ror in this case upon the order of the court with reference to the two policies.

On the first policy the demand for the policy was made by the defendant himself, who later took the stand and testified to the same facts in his own defense. In the matter of the second policy, defendant’s counsel obtained posession of the policy from a witness subpoenaed by the state and are not now in a position to predicate error upon this.

In the case of Montgomery v. State, 13 Okla. Cr. 652, 166 P. 446, this court held:

“Where it is contended that the accused was compelled in violaton of section 21, art. 2, Constitution, to give evidence which tended to incriminate him by reason of the production of the original copy of an alleged forged deed which formed the basis of the charge against him, pursuant to an order of court to produce same, it must affirmatively appear from the record that the accused himself was compelled to produce or give such evidence. Where the accused takes the witness stand in his own behalf and testifies that he never had in his possession the original copy of the alleged forged deed, which had theretofore been produced, he will not be permitted in this court to assert a claim that he was compelled to produce it.”

It does not affirmatively appear from the record that the defendant himself was compelled to produce the policy or give such evidence. The defendant having taken the witness stand and testified that he did not have possession of the policy and did not produce the policy, he will not be permitted in this court to assert a claim that he was compelled to produce it.

The evidence is amply sufficient to support the verdict of the jury, and, no errors of law appearing on the record sufficient to justify a reversal, the cause is affirmed.

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


text:
    F. O. STRONG v. STATE.
    No. A-6353.
    Opinion Filed March 16, 1929.
    (275 Pac. 385.)

      Frank T. Gee, Massingale & Duff, and J. T. Bailey, for plaintiff in error.
    Edwin Dabney, Atty. Gen., J. H. Lawson, Asst. Atty. Gen., and Seymour Foose, for the State.
   CHAPPELL, J.

The plaintiff in error hereinafter called defendant, was convicted in the district court of Blaine county of the crime of forgery in the second degree and his punishment fixed by the jury at one year in the state penitentiary.

The defendant was indebted to-the American State Bank of Geary in the sum of $5,000, and the record discloses that at one time he was indebted to the bank in the sum of approximately $15,000; that the bank was not able to carry such a large loan against any one man, and the defendant was required to make arrangements to care for a portion of the amount, and in so doing he signed the name of his brother, S. J. Strong, to a note for $5,000 and indorsed the note and in this way canceled a portion of the indebtedness and received about $400 in cash in the transaction. The evidence clearly reveals the fact that the note in question had been signed by the defendant using the name of “S’. J. Strong,” which was the name of his brother, and that the defendant had admitted at different times that his brother had nothing to do with the note. There is also evidence to the effect that the defendant admitted that the signature of his brother was a forgery and that his brother did not authorize it and that his brother was not responsible for it. There is also evidence in the record by persons familiar with the handwriting of S. J. Strong which is to the effect that the signature was not the signature of S. J. Strong, but that the signature was in the handwriting of the defendant, F. O. Strong. There is ample evidence in the record to support the verdict of the jury, and the defendant is not entitled to a reversal unless the record discloses errors of law fatal to the case.

The first assignment of error presented in the brief of defendant is that the amended information is duplicitous.

The offense of having possession is defined by section 2080, C. O. S. 1921. The salient features of the definition of the offense are: “Any person who has in his possession any forged * * * instrument, * * * knowing the same to be forged * * * with intent to injure or defraud by uttering the same to be true.”

The offense of selling a forged instrument is defined by section 2078, C. O. S. 1921. The salient features of this definition are: “Any person who sells * * * for any consideration any forged * * * promissory note, * * * knowing the same to be forged, * * * with intent to have the same uttered or passed."

The information starts out by alleging: “H,e, the said F. O. Strong, then and there having in his possession * * * certain forged * * * instrument in writing, commonly called a promissory note.” The information then sets out a copy of the note and the indorse-ments, and alleges that the defendant “then and there well knowing said promissory note to be forged,” and sets out the nature of the forgery; then, proceeding, said: “ * * * Did sell said promissory, note ¡to American State Bank of Geary, Oklahoma, for the sum of $5,000.00, with the unlawful, felonious, and fraudulent intent of him, the said F. O. Strong, then and there the said forged and counterfeited note to utter and pass as true, and to cheat, injure, and defraud the American State Bank.”

The information sets up a sale of the forged instrument by the defendant to the' American State Bank, and nothing more. The allegation, “then and there having in his possession,” is a preliminary introduction to the charge of the elements of the crime, and was intended only to show that the defendant by having physical possession of the note was in a position to sell and deliver the same. The charge of the unlawful, felonious, and willful act is in connection with the allegation that the defendant did sell the promissory note, and the intent alleged follows the allegation of selling and refers only to such selling.

The intent, to wit, “the said forged and counterfeited note to utter and pass as true,” is the intent defined by section 2078, and not the intent defined in section 2080, to wit: “Intent to injure and defraud by uttering the same to be true.” The information further alleges, “and to cheat, injure, and defraud the American State Bank,” but this is merely the stating of the intent in the conjunctive. The defendant may have more than one intent in the commission of the crime, and such intent .may be set out in the conjunctive without making the information duplicitous.

In the case of Wilborn v. State, 26 Okla. Cr. 437, 224 P. 214, Mr. Justice Bessey recites that the defendant was “* * * charged with having in his possession a certain forged and counterfeited promissory note and with having, on the 1st day of May, 1918, unlawfully and knowingly offered this promissory note for sale to the First National Bank of Woodward, and with having on that date uttered and transferred to this bank as a true and valid instrument said counterfeit note.”

The court further says:

“It is alleged in the information that the defendant knowingly and feloniously offered this promissory note for sale to the First National Bank of Woodward, for the sum of $756.45 in money, with the unlawful and felonious intent to utter and pass this note as true. The prosecution seems to have been predicated upon the provisions of section 2078, Comp. Stat. 1921, as follows:
“ ‘Any person who sells, exchanges or delivers for any consideration any forged or counterfeited promissory note, check, bill, draft, or other evidence of debt, or engagement for the payment of money absolutely, or upon any contingency, knowing the same to be forged or counterfeited,- with intent to have the same uttered or passed, or who offers any such note or other instrument for sale, exchange or delivery for any consideration, with the like knowledge and intent, or who receives any such note or other instrument upon a sale, exchange or delivery for any consideration with the like knowledge and intent, is guilty of forgery in the second degree.’
“Numerous assignments of error are urged in defendant’s brief. Among other things, it is contended that the proof did not support the allegation of the information that the defendant offered this note for sale, or that it was sold to the Woodward bank in violation of this or any other statute. This claim seems to be based upon the fact that the defendant received no money; that the note was executed and delivered to satisfy the bank for a past and closed financial transaction; and that in that sense it was not a sale or offer for sale and not within the provisions of the statute. We acknowledge that in a technical sense this might be true, but this court does not favor reversals upon mere technicalities. The language of the statute, ‘Any person who sells, exchanges or delivers for any consideration any forged or counterfeited promissory note,’ etc., indicates that it was the intention of the lawmakers that it apply to transactions of this nature. The information might have been drawn more specifically in this regard, but we think the information was sufficiently explicit to apprise the defendant of the nature of the charges he would be called upon to meet. Just why the defendant resorted to this fraud and deception to meet an obligation for which he was in no way criminally liable does _ not appear, but the evidence is conclusive that he did exchange or deliver this spurious note to the Woodward bank for a past consideration, and that he did so for some fraudulent purpose.”

In the case of State v. Klugherz, 98 N. W. 99, paragraph 2 of the syllabus (91 Minn. 406, 1 Ann. Cas. 307), this court says:

“The making of a forged written instrument and the uttering of it by the same person, at the same time, as one transaction, constitute but one offense.”

Under the facts as set forth in Wilborn v. State, and State v. Klugherz, the contention of the defendant that the amended information was duplicitous and unintelligible was properly overruled.

The defendant next complains that the court erred in giving instructions Nos. 4 and 5. From a careful examination of the record we are unable to find where the defendant took any exceptions to these instructions or any of the instructions. The first objection shown in the record of the instructions is shown in the motion for new trial. If the defendant desired to raise the question of the sufficiency of the instructions he should have excepted to the instructions at the proper time and saved his exceptions in the record. Under the record as it appears in this ease, this court is without authority to review the correctness of the instructions given.

The final error complained of which the court deems it necessary to notice is that the verdict of the jury is not supported by the evidence. In Harrison v. State, 10 Okla. Cr. 210, 135 P. 948, this court laid down the rule as. set forth in the syllabus of this case. That rule has been reaffirmed in the late case of Mose Jackson v. State, 42 Okla. Cr. 86, 274 P. 696, and the question is no longer an open one with this court.

The evidence being ample to support the verdict of the jury and no sufficient errors of law appearing upon the record to justify a reversal, the cause is affirmed.

DAVENPORT, J., concurs.

EDWARDS, P. J., not participating.


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    A. E. BEAN v. STATE.
    No. A-6561.
    Opinion Filed March 16, 1929.
    (275 Pac. 383.)

      Ross Cox, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Harmon county on a charge of stealing domestic fowls, and was sentenced to pay a fine of $150 and to serve 30 days in the county jail.

The case was tried in October, 1926, and the appeal was lodged in this court in April, 1927. No briefs in support of the appeal have been filed, nor was there any appearance for oral argument at the time the case was submitted.

We have examined the record, the evidence is circumstantial, and there are sufficient circumstances proven from which the jury might reasonably and logically find the defendant guilty. The facts proven are consistent with the guilt of the accused and inconsistent with any other reasonable hypothesis than that of his guilt. The defendant did not take the stand and offered no evidence. No material error is apparent.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


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    CHARLES E. PATTERSON v. STATE.
    No. A-6088.
    Opinion Filed March 16, 1929.
    (275 Pac. 387.)

      Mauntel & Spellman, Howard W. Patton, and Mathers & Whiteside, for plaintiff in error.
    Edwin Dabney, Atty. Gen.., and J. H. Lawson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Woodward county on a charge of robbery with firearms, and was sentenced to serve a term of 10 years in the state penitentiary.

On the date charged, a bank at Sharon was robbed and about $2,500 taken. The robbery was accomplished by two men who appeared at the bank in a Ford touring car. The state contends: That defendant, Jim Cellen, and Bob Evans planned and carried out this robbery. That on February 18 they familiarized themselves with the time of the opening of the bank at Sharon, and that afternoon they stole a Ford touring car at Enid, left there late in the day with the touring car and a Ford coupe, in which they had gone to the community at Sharon, which they planned to use as a get-away car. They proceeded to a place near Sharon, spent the night, and defendant and Cellen went to the bank early next morning and accomplished the robbery while Evans remained with the coupe about 2 miles out of the town. After the robbery, they drove 2 miles north from Sharon, abandoned the touring ear, and Cellen and Evans concealed themselves in the back of the coupe, and defendant drove to the town of Seiling, a distance of from 33 to 37 miles from Sharon. While at the town of Seiling for some 40 minutes, Cellen and Evans remained concealed in the back of the coupe. Before reaching Seiling, a witness followed the car for some 20 miles and asked defendant to stop in the town so that the officers might investigate, as the robbery had been reported, and he attempted to detain defendant until the officers arrived. Defendant drove away, and this witness, Harve Wreath, jumped on the running board and went with him for about a mile, when he was forcibly ejected from the car and ordered to go back. Defendant drove about 6 miles to an obscure road, where the money was hidden, and Cellen and Evans concealed -themselves in the brush. He was arrested late that afternoon. Defendant denies all the testimony of Cellen and contends that he never saw him or Evans, and made the defense of an alibi, and to that end admits he was a whisky runner, and explains some of his actions by reason of that fact.

The first contention made is that there is no corroboration of the testimony of Cellen, an admitted participant in the robbery. An examination of the record refutes this contention. Oscar Winstead, a schoolboy, testified in part:

“* * * Q. Oscar, I will ask you to state to the court and jury where you lived on the 19th day of February, 1925. A. Six miles east of Sharon and three-quarters of a mile south and a quarter east. Q. Do you remember the day of the bank robbery at Sharon? A. Yes, I remember the day. * * * Q. Did you see any cars on the road that morning', as you was going to school? A. I did, yes, sir. Q. What kind of cars did you see? A. I saw a Ford car and a coupe. Q. Which way were they going? A. They were going west. Q. Was that in the direction of Sharon or not? A. Yes, it was. Q. State whether or not you did anything when those cars passed you on that morning. A. When the first car passed me, I kind of hollowed or waved like, in order to get them to stop and they went right on and when the coupe passed me, I didn’t say a word. Q. What did you next notice occur with reference to those two cars? A. The touring car was in the lead and it stopped to the right of the road and the coupe drove up by the side to the left of it and they talked a short time. Q. Then after that, what happened, if anything? A. They drove on. Q. What kind of a car was that touring car? A. It was a Ford. Q. What model did it appear to be? A. A 1925 model. Q. What was'the condition of that car with reference to being new or old? A. It was new. It was a new looking car. Q. What kind of a looking car was this coupe? A. It was a new looking car. It was a very nice looking car. Q. Did you notice how many men were in that Ford touring car? A. Yes sir, I did. Q. How many were there? A. There were two. Q. How many men were in the Ford coupe? A. There was one in it. Q. What time of the morning was that? A. Well, sir, I would judge that it would he somewhere between eight and 8:30 o’clock or something like that. * * *”

This testimony of Winstead corroborates very substantially a portion of the testimony of the accomplice Cellen.

Pearl L. McNeil testified that he knew defendant, saw him in the town of Sharon on February 18, the day before the robbery of the bank, and then testified:

“* * * Q. When did you next see the defendant? A. The next morning, on the morning of the 19th. Q. Where did you see him? A. I saw him pass my residence the next morning. Q. In what part of the town of Sharon is your residence situated? A. In the northwest part of the town. Q. Do you know where the Sharon State Bank is located? A. Yes, sir, I do. Q. How far was your residence from the Sharon State Bank? A. It is just a block. Q. At the time you saw him passing your residence there in the town of Sharon, in what was he traveling? A. In a Ford touring car. Q. With respect to being new or old, what was the character of the car? A. It was a new car. * * * Q. Just describe the car to the court and jury. A. It was a touring car and it had on side curtains. It was a new car. Q. What kind of a car was it, if you know? A. It was a Ford car. Q. Do you know whether there was any one in the car with him, at the time, or not? A. No sir, not as I saw. Q. Did you know the direction in which he was going? Do you know that? A. Yes, sir, I do. Q. In what direction was he going? A. He was going north. Q. Do you know about what time of day that was? A. I place the time at about 8:30 o’clock. Q. Did you see him again that day? A. Yes, sir, I did. Q. Where was it you next saw him that day? A. Sitting in front of the bank in this car, in a Ford touring car. * * * Q. How close were you to the defendant at that time? A. It was about thirty feet. Q. Did you see any one else? A. Yes, sir, I did. Q. Who did you see, if you know? A. Well, I don’t know as I can give the gentleman’s name. Q. Have you since learned his name? A. I have. Q. What did you learn his name to be? A. I learned it to be Cellen. * * * Q. Where was he at the time you passed the car? A. He was standing on the sidewalk in front of the hank door, Q. About what time of the morning was that? A. It was right at nine o’clock. Q. How long was it after this time that you learned that the bank had been robbed? A. It was about ten minutes; or fifteen minutes. * * *”

This testimony corroborates materially the testimony of Cellen in reference to the time of entering the town of Sharon until after the robbery of the bank.

L. E. Wheeler, superintendent of schools at Sharon, testified he saw defendant in the town of Sharon the day before the robbery, talked with him, and after the robbery saw him in the jail at Woodward and identified him as the same person, as follows:

“* * * Q. What time before had you seen him? A. Well, I saw him in the morning before the bank was robbed, around eight o’clock. Q. Where was that, in the town of Sharon? A. It was right in front of the restaurant on the west side of the street. Q. State whether or not you had an opportunity to plainly observe him at that time. A. Yes, sir, I did. Q. State whether or not you engaged him in conversation. A. Yes, sir, I did. Q. How long did you talk to him? A. Oh, I judge I talked to him about ten minutes or maybe it was fifteen minutes. Q. You identify the defendant Charles E. Patterson here as being the man you talked with at that time? A. Yes, sir, I do. * * *’*

Then being asked if there was anything about defendant that enabled him to identify defendant, said further:

“* * * A. Yes, sir, there was. Q. ‘Just state what it was. A. He had a watch chain, a heavy watch chain with an Elk emblem on it. Q. Was there anything else about him that caused you to identify him? A. Yes, sir, there was. Q. What was it? A. And a dark spot on Ms face. Q. Where was that dark spot on his face located? A. On the left side of his face. * * *”

This testimony also corroborates the testimony of Cellen.

E. D. McHard testified, in substance, that he is a farmer living south of Mooreland, and that on the morning of February 19, about 7 o’clock, he saw two cars pass his place, one a Ford touring car and the other a Ford coupe going in the direction of Sharon; that the touring car was a new car and the coupe appeared to be a 1924 model. This also strongly corroborates the testimony of Cellen. In the light of this and the other testimony in the record, the contention that the accomplice is not corroborated is wholly untenable. There is an abundance of corroboration.

As we have stated, it was the theory of the state that Cellen and Evans were concealed in the back of the coupe at the time defendant was in the town of Seiling. There was introduced in evidence certain photographs showing the car with two men in it and the back part of the car closed. Defendant is aggrieved at the admission of this evidence, insisting that it is not corroboration and the admission of these photographs prejudicial. This evidence would not be corroboration of the testimony of Cellen except as showing the possibility that two men might be concealed in the back of a Ford coupe. If this we're the only evidence in corroboration, the contention would be well taken.

Next it is argued that the court erred in his instruction on the law of alibi. This instruction is: “Gentlemen of the jury, you are instructed that one of the defenses interposed by the defendant in this case is an alibi; that is, that the defendant was at another place at the identical time the crime was committed, if committed at all. If, in view of all the evidence, you have any reasonable doubt as to whether the defendant was at another place from where the crime was committed at the time of its commission, then you should acquit; but if you believe from the evidence that the accused was not so far away from the place where the offense was committed, but that he could with ordinary exertion have reached the place where the offense was committed, then you will consider that fact as a circumstance tending to prove or disprove the alibi.”

This instruction is not happily worded, and is not approved as a model, but, as was said in the case of Spess v. State, 20 Okla. Cr. 94, 201 P. 395, alibi amounts to nothing more than a mere traverse of the material averments of an information or indictment, and that any person of ordinary intelligence is able to understand and comprehend that, if a person accused of a crime was at another different and distinct place at the time, whose presence at the scene of the crime is relied on for conviction, it is impossible for him to have committed the offense. See, also, Alvarado v. State, 38 Okla. Cr. 360, 261 P. 983. An instruction upon the subject of alibi must need be erroneous to the extent that it substantially prejudices a defendant before we would feel warranted in reversing a case for an error in stating the law of alibi.

Defendant requested an instruction that his admission that he was engaged in the violation of the liquor law should not be considered in arriving at a verdict of guilty in this case. It might have been well for the court to have cautioned the jury upon this point, but certainly we cannot say the jury were so wanting in intelligence that the failure to so instruct would have led them to find him guilty of robbery.

In advising the jury as to the punishment for the crime charged, the court instructed them that the maximum penalty was death and the minimum punishment imprisonment for a term of not less than five years; the court evidently having in mind that chapter 44 of Session Laws of 1925 was in force at the time of the commission of this offense. In this the court was in error. The punishment at that time was fixed by section 1, c. 85, Session Laws 1923, and the minimum punishment was confinement in the penitentiary for a term of not less than 25 years. The court and county attorney should have been better advised. In Lilly v. State, 7 Okla. Cr. 284, 123 P. 575, Ann. Cas. 1914B, 443, it was said, in substance, that the punishment for an offense should be under the statutes as they existed at the time the offense is committed. See, also, Ensley v. State, 4 Okla. Cr. 49, 109 P. 250; State ex rel. v. McCafferty, 25 Okla. 2, 105 P. 992, L. R. A. 1915A, 639; Williams v. State, 7 Okla. Cr. 529, 124 P. 330. A very similar question was before this court in the recent case of Cornett et al. v. State, 40 Okla. Cr. 172, 267 P. 869, in which it was held:

“Where the court in its instructions submits to the jury a smaller penalty for the offense than that prescribed by law, but of the same kind, and where the defendant does not call the attention of the court to, nor except to, the error in defining the punishment, and a smaller penalty is assessed by the jury, the error being beneficial to defendant, the defendant, upon appeal, will not be heard to complain that such instruction is prejudicial. The error in such case is not reversible.”

The difference between that case and this is that here the instruction was excepted to. Trial courts and prosecuting officers should inform themselves of the provisions of the statutes applicable to a crime charged and see that the instructions properly charged the statute. Except for the fact that the error is favorable to defendant, we would be compelled to reverse this case.

Under the record there would seem to be no question of the guilt of the accused. He was fairly tried, and such errors as appear were either favorable to him or without any substantial prejudice.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


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    GEORGE BENNETT v. STATE.
    No. A-6443.
    Opinion Filed March 16, 1929.
    (275 Pac. 390.)

      Ben F. Williams, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was tried in the district court of Cleveland county, on a charge of assault with intent to kill, and convicted of assault to do bodily harm, and his punishment fixed at imprisonment in the county jail for six months. Motion for new trial was filed and overruled, exceptions saved, and the defendant has appealed to this court.

The state introduced testimony showing <&■ difficulty between the defendant and one Roy Shriver, in which the defendant shot Roy Shriver. The defendant introduced his testimony tending to establish that the shot was fired in his necessary self-defense. After an examination of the record we do not deem necessary to set out at length the testimony on behálf of the state or the defendant.

The defendant has assigned twelve separate errors alleged to have been committed by the trial court. From an examination of the record we are convinced that the court committed reversible error, and therefore it will only be necessary to discuss the twelfth assignment. This assignment of error presents the question of the defendant not having a fair and impartial trial, by reason of the fact that after the jury in said cause had retired to the jury room to consider of their verdict, Judge W. L. Eagleton, district judge before whom the case was tried, went into the jury room, taking with him the court reporter and defendant, and, in the absence of defendant’s attorney, conversed with and reinstructed the jury as follows:

“By the Foreman of the Jury: I wish to say as foreman of the jury we have reached this status of the question. Under No. 4 of your instructions that we find the defendant guilty as under this charge and ask the court to fix the penalty of the sentence. Whether we are right or wrong in that, we don’t know.
“By the Court: The court of course expected under the instructions that the jury would also fix the penalty and under the entire instructions there, you will find that is what I informed or told the jury. I will state that the statute provides that in the event the jury cannot agree upon the penalty they can so note upon their verdict and. that would put it up to the courts Now Mr. Williams, the defendant’s attorney, has always opposed the penalty being placed upon the court and for that reason I never instruct the jury in one of his cases to fix the penalty; that is, the placing of the penalty placed upon the court; and unless Mr. Williams was present, I don’t think I would want to take the responsibility, knowing his general feelings in those matters, but we will try' and get in touch with him and if he will agree, then the court will instruct you to that extent.
“By the Foreman: I wish to further state, unless we can reach an agreement of this kind, the jury is hopelessly hung.
“Bv the Court: Well, the court cannot accept a suggestion from the jury at this time that it is a mistrial. The court woujd have to insist, of course, that the jury still work.
“By the Foreman: I did that to strengthen the status of the case as the jury is ten to two.
“By the Court: That really weakens it because Mr. Williams would never agree that the jury should shift the penalty to the court. So, gentlemen, I will have to ask you — there is no use calling Mr. Williams under that statement — so the court will have to ask the jury to continue in their efforts. Now the leeway is so great that it seems to me that the jury certainly can reach an agreement.
“By the Foreman: Thank you very much.
“By the Court: You don’t differ as to the law and you don’t differ as to the facts in the case but merely the application of the facts to the law, is that all?
“By the Foreman: That is a good deal of it. We might say this question — there is some doubt in the mind of the jury seemingly in regard to the penalty in this case. It says, ‘is punishable by imprisonment in the penitentiary not to exceed five years or by imprisonment in the county jail not exceeding one year.’ The question arises as to the ‘exceeding.’
“By the Court: The word ‘exceeding’ means that if you should determine under that instruction, find the defendant and wanted to assess his penalty in the penitentiary it must be five years or less; it might be any time not to exceed five, it cannot be more than that. And it carries with it also a jail sentence. In event you don’t want to send the defendant to the penitentiary you can give him a jail sentence under the further instructions of the court not to exceed twelve months. That means in the county jail for any time, not over twelve months. I think that if I have the bailiff take you to supper, maybe on a full stomach you may be able to do better work.”

The record shows that the counsel for the defendant was not notified of the court’s intention of going into the jury room, taking the court reporter and the defendant along with him, and the defendant was entirely without advice as to his actions, being an inexperienced man did not know what to do, and obeyed the directions of the court. It is further shown by the record that the court in overruling defendant’s motion for a new trial said in this connection:

“While the court admits that he did not make any effort that he now remembers to have the attorney present, I don’t believe the court even stopped the matter long enough to even try to find the attorney, but the defendant was present and the court told the defendant to come with him to the jury room, and he told the stenographer to take down everything that was said.”

This record is undisputed, and it is undisputed that the record discloses defendant was unable to tell definitely what did take place in the jury room. The defendant urges that the action of the court in entering the jury room and reinstructing the jury was in violation of section 2687, C. O. S. 1921. The last sentence of this section 2687 provides:

“All instructions given shall be in writing unless waived by both parties, and shall be filed and become a part of the record in the case.”

Section 2730, C. O. S. 1921, is as follows:

“After the jury have retired for deliberation, if there be a disagreement between them as to any part of the testimony or if they desire to be informed on a point of law arising in the cause, they must require the officer to conduct them into court. Upon their being brought into court, the information required must be given in the presence of, or after notice to the county attorney and the defendant or his counsel or after they have been called,”

In Watson v. State, 7 Okla. Cr. 508, 124 P. 329, in the second paragraph of the syllabus this court says:

“Under Comp. Laws 1909, § 6865, providing that after the jury have retired for deliberations, if they shall desire to be informed on a point of law, they must be conducted into the court room, and the information given in the presence of or after notice to the counsel for both parties, it is reversible, error for the judge to follow the bailiff to the jury room, and there instruct the jury as to the effect of a verdict rendered by them; none of the counsel being present.”

In Ridly v. State, 5 Okla. Cr. 522, 150 P. 628, this court held that if while the jury was in the jury room deliberating upon a verdict, one of the members knocked upon the door and when the door was opened talked with the clerk as to how the verdict should be signed, held that any communication or conversation with the jury in reference to the case by the clerk of the court, after the jury had retired to consider of its verdict, will be presumed to prejudice the rights of the defendant.

In Selstrom v. State, 7 Okla. Cr. 345, 123 P. 557, this court held that where the bailiff called a juror from the jury room, after the case had been finally submitted to the jury, and the juror leaves the bailiff and goes into another room and converses with the sheriff, and his conduct and conversation during that time is unexplained, it is an abuse of discretion for the trial court to overrule the motion for a new trial.

In Milam v. State, 24 Okla. Cr. 247, 218 P. 168, in the third paragraph of the syllabus, this court held:

“Oral instructions given, after submission of the cause to the jury, during the jury’s deliberations, held improper and misleading, (a) After a cause is submitted to the jury if the jurors ask for further instructions, and the court deems it proper, additional instructions may be given. These should be reduced to writing, and filed in the same manner as the original instructions.”

In Henderson v. State, 18 Okla. Cr. 611, 197 P. 720, this court said:

“1. It is the duty of courts to enforce a rigid and vigilant observance of the provisions of the statutes designed to preserve inviolate the right of trial by jury and the purity of jury trials.
“2. Under section 5913, Revised Laws 1910, providing that: ‘After the jury have retired for deliberation, if there be a disagreement between them as to any part of the testimony or if they desire to be informed on a point of law arising in the cause, they must require the officer to conduct them into court. Upon their being- brought into court, the information required must be given in the presence of, or after notice to, the county attorney and the defendant or his counsel, or after they have been called’ — it is reversible error for the trial judge, upon being called by the jury, to go to the jury room, and in the absence of counsel and the defendant to converse with the jury and again read any of the instructions to them. • Such information must be given in conformity with section 5913, or not at all.”

In this case the Attorney General confessed error, and said, in part:

“In addition, we are inclined to think that it should be the policy of the law that one convicted of crime not to be required to prove that the presence of the trial judge in the jury room did not prejudice his rights, it being a violation of the law for the judge to be present with the jury, while they are considering their verdict; in the interest of justice, it is only proper to hold that such act constitutes prejudicial error, and we are inclined to think that for the error pointed out, the judgment of the trial court should be reversed.”

In Swaggert v. Territory, 6 Okla. 344, 50 P. 96, in the second paragraph of the syllabus, the court said:

“The giving of oral instructions to the jury in a criminal case without the consent of the defendant, the consent of the defendant thereto cannot be presumed from his presence and failure to make objection, when the oral instruction is given, is error.”

In this opinion numerous California cases are quoted which held it reversible error for the court to orally instruct the jury without the consent of the defendant. In People v. Payne, 8 Cal. 341, the instruction had been given in writing, and a verbal qualification had been added; the verdict was reversed. It is an unusual thing for the trial court to go into the jury room and there have any conversation, or give to the jury any information or instructions. The proper way is for the court to call the jury into the jury box,, in open court, advise the counsel, and, when all are present to inquire of the jury what information they desire, and, if it is additional instruction, upon what part of the testimony it is desired. In this case the record discloses that the judge, in the absence of the counsel for the defense, in the jury room, after the jury had retired to consider its verdict, gave the jury oral instructions, in which he stated: “I will state that the statute provided that in the event the jury cannot agree upon the penalty they can so note upon their verdict and that would put it up to the court. Now Mr. Williams, the defendant’s attorney, has always opposed the penalty being placed upon the court and for that reason I never instruct the jury in any of his cases to fix the penalty; that is the placing of the penalty placed upon the court; and unless Mr. Williams was present I don’t think I would want to take the responsibility knowing his general feelings in those matters, but we will try to get in touch with him and if he will agree, then the court will instruct you to that extent.”

The record further shows that there was a discussion back and forth between the foreman of the jury and the court as to their controversies which was interfering with their returning a verdict. In section 2687, supra, it is provided that all instructions given shall be in writing, unless waived by both parties, and has been construed by this court several times from territorial days down to the present. 'It is the duty of the trial court to reduce his instructions to writing, and, unless waived by both parties, we hold that it is an abuse of discretion for the trial court to go into the jury room, after it has retired to consider its verdict, and there engage in a conversation with members of the jury as to the law applicable to the facts in the case, and as to why he would not advise them to return a verdict leaving the penalty to the court, telling the jury, in the absence of defendant’s counsel, that, knowing counsel’s attitude upon that question, he would not advise them unless he could get in touch with defendant’s attorney and he would agree to it.

In this case no one can tell what the verdict would have been had the court not gone into the jury room and engaged the jury in the conversation that he did. The defendant, it is true, was present, but by order of the court; he was not represented by counsel and had not voluntarily consented to anything. The court, in orally reinstructing the jury, which was a violation of defendant’s rights under the law, had talked to them face to face, and told them: “I think if I have the bailiff take you to supper, maybe on a full stomach you may be able to do better work.” Just what the court had in mind by that no one can tell, but in view of the fact that the jury had not agreed upon its verdict it is reasonable to infer that when they returned from their supper with full stomachs they would be able to reach a verdict of guilty.

For the reasons stated the judgment is reversed, and the case remanded for further proceedings not inconsistent with this opinion.

EDWARDS, P. J., and CHAPPELL, J., concur.


author: CHAPPELL, J. DAVENPORT, J.

text:
    FRITZ PIERCE v. STATE.
    No. A-6407.
    Opinion Filed March 16, 1929.
    (275 Pac. 393.)

      C. B. Leedy and L. E. Moyer, Jr., for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter referred to as defendant, was tried in Ellis county, Okla., on the 9th day of August, 1926, upon an information filed in the county court charging the defendant with unlawfully, willfully, and wrongfully carrying upon and about his (the said Fritz Pierce’s) person, a Colt’s automatic revolver, without authority of law, and contrary to the statute in such cases made and provided.

The defendant was found guilty, and was sentenced to pay a fine of $25., from which judgment of the court the defendant appeals.

The facts as disclosed by the evidence of the state are: That J. A. Hanley, Mr. Devenney, and Mr. Thoroughman had gone to the premises of the defendant for the purpose of searching for a still. The officers had a search warrant to search the premises of the defendant, and, upon their arrival at the premises of the defendant, the defendant came to the door and had a gun on his person, on his right side in the top of his pants, stuck down under his belt, extending inside of his trousers, about half of the gun being visible. That this was an automatic revolver, about a .38. That, during the time the officers were present on the premises of the defendant, the defendant came out in the yard with his gun, and made trips into the house and out into the yard at different times during the time the search was being made. At the time the officers were ready to leave, one of the officers took the gun off the person of the defendant. No effort was made by the defendant to use the gun, but he claimed that he had the gun because he had heard that he was liable to be robbed, and that he had some money about his premises, and that he purchased the gun and kept it fojr the purpose of protecting himself against any intruders who might attempt to rob him.

There is but one question raised in the brief of the defendant, and that question is whether of not, under the Constitution and laws of the state of Oklahoma, the defendant had a right to carry a gun on his person while in his own house and yard.

The defendant in his brief states his allegation of error in the following language:

“All assignments will be considered in one assignment. That under the Constitution (Bill of Bights) Sec. 26, of Article 2, the defendant committed no offense, and the evidence is insufficient to sustain a conviction.”

This contention presents squarely to this court the question of whether the Constitution and laws of the state of Oklahoma prevent any person from carrying any pistol, revolver, bowie knife, dirk knife, loaded cane, billy, metal knuckles, or any other offensive or defensive weapon on his person while in his house or in the curtilage of his premises, and whether he may be convicted and punished for the act under the Constitution and laws of this state.

Section 26, article 2, of the Constitution of Oklahoma, reads as follows:

“The right of a citizen to keep and bear arms in defense of his home, person, or property, or in aid of the civil power, when thereupon legally summoned, shall never be prohibited; but nothing herein contained shall prevent the Legislature from regulating the carrying of weapons.”

The defendant is prosecuted under section 1992, C. O. S. 1921, which provides as follows:

“It shall be unlawful for any person in the state of Oklahoma to carry upon or about his person any pistol, revolver, bowie-knife, dirk-knife, loaded cane, billy, metal knuckles, except as in this article provided.”

Section 1994, C. O. S. 1921, provides:

“Public officers while in the discharge of their duties or while going from their homes to their place of duty or returning therefrom shall be permitted to carry arms, but at no other time and under no other circumstances: Provided, however, that if any public officer be found carrying such arms while 'under the influence of intoxicating drinks, he shall be deemed guilty of a violation of this article as though he were a private person.”

Section 1995, C. O. S. 1921, provides:

“Persons shall be permitted to carry shot-guns or rifles for the purpose of hunting, having them repaired, or for killing animals, or for the purpose of using the same in public muster or military drills, or while traveling or removing from one place to another and not otherwise.”

The defendant does not come within any of the exceptions mentioned in such statutes.

In the case of Ex parte Thomas, 1 Okla. Cr. 210, 97 P. 260, 20 L. R. A. (N. S.) 1007, in the syllabus of the case, this court held:

“The provisions of the Statutes of Oklahoma (sections 2502, 2503, Wilson’s Rev. & Ann. St. Okla. 1903) prohibiting the carrying of the weapons therein set out are not repugnant to each other, or viola-tive of section 26 of article 2 of the Bill of Rights of the Constitution of Oklahoma, but the valid provisions of such statutes extended to and put in force in the state by the provisions of section 21 of the Enabling Act (Act June 16, 1906, c. 8335, 34 Stat. 277) and section 2 of the Schedule of the Constitution.”

The body of the opinion enlarges and discusses at length the right to carry a pistol or a concealed weapon. The court says the question now arises: “Is a pistol the character of arms in contemplation of the constitutional convention and of the people of the state when they declared that the right of a citizen ‘to carry and bear arms,’ etc., ‘shall never be prohibited.’ We hold that it is not and most of the states where it has been passed upon support us in this conclusion. Bishop on Statutory Crimes, § 793; Andrews v. State, 3 Heisk. (Tenn.) 165, 8 Am. Rep. 8; Fife v. State, 31 Ark. 455, 25 Am. Rep. 374; Aymette v. State, 2 Humph. (Tenn.) 154; Hill v. State, 53 Ga. 472; City of Salina v. Blaksley, 72 Kan. 230, 83 P. 619, 3 L. R. A. (N. S.) 168, 115 Am. St. Rep. 196, 7 Ann. Cas. 925.”

In Mathews v. State, 33 Okla. Cr. 347, 244 P. 56, the court said:

“The provisions of the statutes ¡of Oklahoma (sections 1991, 1992, C. O. S. 1921), prohibiting the carrying of the weapons therein set out, are not vio-lative of section 26 of article 2 (Bill of Rights) of the Constitution of Oklahoma.”
“The evidence is brief, and is, in substance, that the defendant is a practicing attorney of Payne county; that at the time the offense is charged the defendant appeared before a justice of the peace at Stillwater as attorney for some persons in that court, and at the time had in his right-hand coat pocket a revolver, the barrel of which protruded ¡through the pocket and was exposed. The defendant admitted that he carried the pistol as alleged, * * * and that he carried the pistol for his protection. The contention is advanced that, under section 26 of the Bill of Rights of the state Constitution, he had a right to carry the pistol for his protection. This section of the Constitution is as follows: ‘The right of a crb'zen to keep and bear arms in defense of his home, person, or property, or in aid of the civil power, when thereunto legally summoned, shall never be prohibited; but nothing herein contained shall prevent the Legislature from regulating the carrying of weapons.’ The prosecution was conducted under section 1991, Comp. Stat. 1921, which is: ‘It shall be unlawful for any person in the state of Oklahoma to carry concealed on or about his person, saddle or saddle bags, any pistol, revolver, bowie-knife, dirk, dagger, slung-shot, sword-cane, spear, metal knuckles or any other kind of knife or instrument manufactured or sold for the purpose of defense, except as in this article provided.’ The Supreme Court had occasion to construe this statute in the case of Ex parte Thomas, 1 Okla. Cr. 210, 97 P. 260, 20 L. R. A. (N. S.) 1007, in which case it was held that the right to hear arms Jas provided by section 26 of tfhe Constitution, supra, has reference to arms of a military character, such arms as are used for purposes of war, and does not prevent the Legislature from prohibiting the carrying of weapons such as may be concealed about the person and used in private quarrels, and which do not contribute to the common defense; that the Legislature, in the exercise of the police power of the state, without any infringement of the constitutional rights of the citizens, may prohibit and punish the promiscuous carrying of arms. That case was approved and followed by this court in the case of Beard v. State, 7 Okla. Cr. 154, 122 P. 941. We adhere to the principles of law announced in those cases.”

In 40 Cyc. pp. 856 to 864, inclusive, in discussing “Place and Manner of Carrying,” we have this language :

“Under statutes making it an element of the offense of carrying a weapon that it be carried on or about the person, it is so carried when it is in the hand, or clothing of accused, or in a basket carried in his hand, or upon or under the seat of the vehicle in which he is riding, but not when it is in some other part of the vehicle. It is immaterial what locality a person is in when carrying a weapon, except where the statute expressly allows one to carry a weapon on his own premises or about his. place of business, or except where it is a distinct statutory offense to carry a weapon to certain public places, assemblies, or gatherings. Neither is it material that the time and distance the weapon is carried is short, where it is wholly within the possession of accused during that time.”

Section 40 of article 5 of the Constitution of Oklahoma provides:

“The Legislature shall provide for organizing, disciplining, arming, maintaining, and equipping the militia of the state.”

Herein is shown clearly that the Constitution contemplates the maintenance of a militia, and, taking this in connection with the other provisions and the views expressed by the courts from whose decisions we have quoted and the history of and ends to be attained by the arms-bearing provisions, we believe there is no room for doubt that the arms defendant had a right to bear, and which right could never be prohibited him, relates solely to such arms as are recognized in civilized warfare and not those used by the ruffian, brawler, or the assassin.

Under article 2, § 26 (Bill of Rights), of the Constitution of Oklahoma, the Legislature has power to not only prohibit the carrying of conceded' or unconcealed weapons described in sections 1991, 1992, C. O. S. 1921, but also has the power to even prohibit the ownership or possession of such arms. Some of the states under similar constitutional provisions have prohibited the ownership, but the Legislature of Oklahoma has not seen fit to go that far. As the law now is in this state, a person may lawfully own and possess any of the weapons in sections 1991, 1992, and may move such weapons from room to room in their place of residence, but may not wear them on their person and transport them about the yard as shown by the evidence to have been done by '.the defendant in this case.

In the trial of the case, the defendant testified substantially as follows:

“That he was a single man living alone, and a friend of his told him that three fellows, which were named, intended to rob or hi-jack him, and that he purchased this pistol about six weeks before the officers came down to search, and had the pistol on his person, but had never carried it off the premises, that this was his only home, had lived at this place over a year, and owned other lands, but rented the lands out, that this place was a rented place, with only a house and small yard. That Jess Miles told him that Boyd wanted Miles to help hi-jack defendant, and defendant says he always had about $100.00 about his house. Defendant says he never threatened any one, told the officers to come in and search but they found nothing in the way of whisky or liquor.”

In the case of Shepherd v. State, 35 Okla. Cr. 405, 192 P. 235, this court held:

“In a prosecution for carrying .a concealed weapon, an offered defense that the revolver which defendant was carrying concealed on his person was a 44-caliber gun commonly known as an ‘army gun,’ and was carried to resist a threatened attack on his life, was not a sufficient defense.”

There being no question of fact in this case, but merely one of law, we hold that the defendant was properly convicted of unlawfully carrying a revolver.

The judgment is therefore affirmed.

EDWARDS, P. J., concurs.

DAVENPORT, J.

(dissenting). I cannot concur in the views of the majority opinion, wherein it holds that the defendant could carry the pistol he was carrying from room to room in his home but could not carry it into his yard, the curtilage of his home. Section 26, art. 2, of the Constitution of Oklahoma, is as follows: “The right of a citizen to keep and bear arms in defense of his home, person, or property, or in aid of the civil power, when thereunto legally summoned, shall never be prohibited; Ibut nothing herein contained shall prevent the Legislature from regulating the carrying of weapons.”

Section 1992, C. O. S. 1921, being the section under which this defendant is prosecuted, is as follows: “It shall be unlawful for any person in the State of Oklahoma to carry upon or about his person any pistol, revolver, bowie-knife, dirk-knife, loaded cane, billy, metal knuckles, or any other offensive or defensive weapon, except as in this article provided.”

Under the Constitution, supra, the Legislature has regulated the carrying of weapons. There is no law which prohibits the defendant from owning and possessing the pistol he was carrying, for which he was arrested and convicted. It is urged by the defendant that, under section 26, art. 2 (Bill of Rights), he committed no offense, and that the evidence introduced by the state against him is insufficient to sustain a conviction. With this contention I agree. Several opinions of the court are cited in the majority opinion, none of which are applicable to the facts in this case, for the reason the party charged in the cases cited was away from his home and in a public place. There is no dispute as to the facts. All the evidence shows that the witnesses against the defendant went to defendant’s home possessed with a search warrant to search the same; that, when they arrived at his home and advised the defendant that they had a search warrant to search his home, the defendant raised no objections; at the time of their arrival, the defendant had the pistol he is charged with unlawfully carrying stuck under his belt on the right side, in the top of his pants; that the officers found nothing called for in the search warrant. The testimony shows that, while they were searching, the pistol still being in defendant’s belt where it was when they first arrived, the defendant walked into the yard, the curtilage of his home, and 'back into the house.

The search was completed by the officers without finding anything called for in the search warrant. They then took the pistol from the defendant and arrested him for unlawfully, willfully, and wrongfully carrying about his person a Colt’s automatic revolver. The defendant insists that the testimony in this case is insufficient to sustain a conviction, for the reason that he was not carrying the pistol in violation of our statute; that, being at home and in his yard, the cur-tilage of his home, he had a right to own and possess the pistol hé was carrying, and to carry it in his house and upon his yard, the curtilage of his home; and that in so doing he was not violating the law prohibiting the carrying of weapons. This seems to be the first time in the history of the criminal courts that any one has ever been arrested for carrying a weapon in his own home or within his yard, the curtilage of his home, under a statute regulating the wearing or carrying of a pistol. Many cases are found where the defendant has been arrested for carrying weapons in violation of the statutes of his state, yet I fail to find any where a man has been arrested and convicted for carrying a weapon that he had a right to own and possess in his house or in his yard, the curtilage of his home, nor does the majority opinion cite any case from any court in this or any other state where the defendant has ever been convicted for carrying a pistol in his home or his yard.

After a careful search of authorities, trying to find one case to sustain the majority opinion, I have failed. I find a ease not exactly in point, but by analogy may be construed in defendant’s favor. In Tucker v. State, 105 S. W. 499, the Court of Criminal Appeals of Texas, in passing upon the question,, made the following statement:

“It is contended that the evidence is not sufficient. There seems to be no practical contradiction in the evidence that appellant was arrested at home and carried by the officers to the county seat, and while en route was searched for weapons and none found. Upon reaching the jail, he was again searched and a knife found upon him, which the witnesses testified was not a dirk, and did not know whether it was a bowie knife or not, that it did not correspond with the definition of a bowie knife, and they did not know what sort of a knife it was.”

The court further said:

“It is the state’s case that he was arrested at his home, and carried under arrest to the county seat and placed in jail. When arrested at home, he had on the knife, and had no opportunity to get it at any other time or place, and being under arrest his actions were not voluntary, but in obedience to the wish and will of the officers.”
“If he had carried the knife himself unfettered by the arrest off his premises, he might be guilty, but we do not believe the law intended, nor is it the law, that a party having on his person a pistol, or any interdicted weapon at his home, and being forced away with it on him, that it would be such a carrying of an inhibited weapon as would make him subject to punishment.”

From an examination of the record, the defendant was at his home where he had a right to- be, exercising peaceably his rights, and, in the exercise of those rights, he was not interfering with any other individual. I cannot believe that the defendant, by carrying the pistol in his house and into his yard, the curtilage of his home, violated the statute of this state. I do not believe that the intention of the Legislature, when it enacted the law regulating the carrying of weapons, intended to abridge the sacred right of a citizen of the state by prohibiting him from doing a certain thing within the walls of his home, and to say that he could not do the same in his yard, the curtilage of that home. From time immemorial, the home, be it ever so humble, has been sacred — the castle of the occupant — with the right to repelí invasion or any trespass thereon. For centuries the right to occupy that home has gone unchallenged. The curtilage to the home is a part of that home, and no court, so far as I have been able to find, has ever attempted to abridge the rights of the occupant of the home and to the exercise and use of the curtilage the same as the home. Without the unrestricted use of the curtilage, the home would be useless. To say that an individual may own and possess, and have the right to carry from one room to another in the house, a pistol, but that he cannot carry it into the yard, the curtilage, in my judgment strikes at the very foundation of the privacy of the home; its sacred protection that has been thrown around it since the organization of a home would be destroyed. The regulations of the carrying of weapons, in my judgtment, was not intended to restrict the rights of an individual in his home and the curtilage thereto.

I think that the defendant was wrongfully convicted; that he violated no law when he was in his home or curtilage thereto in carrying the pistol he carried, and that his objections to the evidence were well taken and should have been sustained, and that the evidence is insufficient to sustain a conviction, and should be reversed, with directions to discharge the defendant.


text:
    ELIZA BUCKNER et al. v. STATE.
    No. A-7077.
    Opinion Filed March 22, 1929.
    (275 Pac. 397.)

      Roy White, for plaintiffs in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson and J. H. Lawson, Asst. Attys. Gen., for the State.
   EDWARDS, P. J.

The plaintiffs in error, hereinafter called defendants, were convicted in the district court of McIntosh county on a charge of adultery, and were each sentenced to serve a term of one year and one day in the state penitentiary.

An examination of the record discloses that the judgment and sentence was rendered on December 19, 1927. Extensions of time were granted to make and serve case-made, and the case-made was served on March 14, 1928, and was settled and signed on April 4, 1928, but such case-made was not lodged in this court until June 21, 1928, more than six months from the date of the rendition of the judgment and sentence. Section 2808, Comp. Stat. 1921, fixes the time within which an appeal from a conviction must be filed; the extreme limit of time is six months. Under the statute it has been uniformly held that, where the appeal is not filed within the time provided by law, this court does not acquire jurisdiction. This has been so often decided that citation of authorities is unnecessary.

The attempted appeal is dismissed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    TOM SHORT et al. v. STATE.
    No. A-6745.
    Opinion Filed March 22, 1929.
    (275 Pac. 407.)
    L. C. McLean, for plaintiffs in error.
    Edwin Dabney, Atty. Gen.,, and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiffs in error were convicted in the district court of Garfield county on a charge of having the unlawful possession of narcotics, and were each sentenced to serve a term of three years in the state penitentiary.

From the judgment and conviction the parties appealed to this court. The appeal was perfected in September, 1927, by filing in this court their petition in error with case-made attached. Since the appeal was taken, and before final submission of the case, the plaintiff in error Tom Short departed this life, as shown by statement of his attorney of record. In a criminal prosecution, the purpose of the proceeding being to punish the accused, the. action must necessarily abate upon his death, and, where it is made to appear that the plaintiff in error has died pending the determination of his appeal, the cause will be abated. It is therefore ordered, that the said cause do abate as to th* plaintiff in error Tom Short, with directions to the trial uourt to enter its appropriate order to that effect.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    N. C. SCOTT v. STATE.
    No. A-6729.
    Opinion Filed March 22, 1929.
    (275 Pac. 408.)
    P. G. Fullerton, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Comanche county of the violation of the liquor law, and his punishment fixed at' confinement in the county jail for a period of 30 days and a fine of $200.

From the judgment of conviction the defendant appealed to this court. The appeal was perfected on August 15, 1927, by filing in this court his petition in error with case-made attached. Since the appeal was taken, and before final submission of the cause, said defendant departed this life, as shown by statement of the attorney of record for defendant. In a criminal prosecution, the purpose of the proceeding being to punish the accused, the action must necessarily abate upon his death, and, where it is made to appear that the plaintiff in error has died pending the determination of his appeal, the cause will be abated. It is therefore ordered that the said cause do abate, with directions to the trial court to enter its appropriate order to that effect.

DAVENPORT and CHAPPELL, JJ., concur.