text:
    TOM GILROY v. STATE.
    No. A—9358.
    June 10, 1938.
    (80 P. 2d 602.)

      W. T. Anglin, of Holdenville, and Leon C. Phillips, of Okemah, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and L. A. Wallace, Co. Atty., of Okmulgee, for the State.
   BAREFOOT, J.

The defendant was charged by information in Okmulgee county with the crime of larceny of domestic animals, was tried, convicted and sentenced to serve a term of 10 years in the penitentiary, and has appealed.

The only assignment of error is that the court refused to grant a continuance of the trial of this defendant. Is is strongly urged that the court erred in refusing to grant a continuance by reason of the absence of attorneys who represented defendant, and that the court erred in refusing to grant a new trial after defendant was convicted.

The facts, as revealed by the record, upon which this contention is based are as follows: A complaint was filed against the defendant in a justice of the peace court of Okmulgee county, on the 27th day of November, 1936. He was arrested and arraigned on December 17, 1936, was bound over to the district court, and on the 11th day of January, 1937, his case was transferred to the Henryetta Division of the superior court of Okmulgee county. On this date he was arraigned, entered a plea of not guilty and the court entered an order setting his case for trial on Tuesday, February 16, 1937. The record which has reference to the motions for continuance filed, the proceedings, statements of attorneys, and the court when the motion for new trial was presented, are so voluminous that it would be unwise to attempt to quote them in this opinion. Not only the affidavit filed but the statements of the attorneys will be considered for the reason that when the statements were made the attorneys asked that they be sworn, and the court and county attorney agreed that the statements made could be considered as the sworn evidence of each without the necessity of an oath.

On the 13th day of February, 1937, three days before the case was set for trial, a motion for continuance was filed for the reason “that Leon C. Phillips, attorney of record for said defendant, Tom Gilroy, is serving as a member of the Legislature of the state of Oklahoma, now in session”. This motion was presented to the court on February 15, 1937, by Mr. Long, an attorney from Mr. Phillips’ office, who appeared specially for the purpose of presenting the motion, and who stated to the court that he was not attorney in the case, and that the defendant had employed Mr. Phillips personally to represent him. Evidence in support of this motion was taken. The defendant was sworn and testified that his attorneys were Leon C. Phillips, of Okemah, and Tom Anglin, of Holdenville. That he employed them a week after he got into this trouble. That his wife was one of the claimants of the Jackson Barnett estate pending in the federal court, and that both Mr. Phillips and Mr. Anglin were attorneys for them in that case, and had been for a long time. That he had “paid Mr. Phillips some fee in the case and had made arrangements with him to take care of it”. That his employment of Tom Anglin was with him personally and not the firm of Anglin & Stevenson. That he had tried to contact Mr. Anglin when he learned his case was set for trial and that Mr. Anglin was sick in bed with the flu and they would not let him talk with him. That Mr. Anglin sent word for him to try and get in contact with his other attorney, Mr. Phillips. While he was on the witness stand with reference to the motion for continuance the county attorney, on cross-examination, propounded this question:

“Q. Now, Tommie, you are charged with having stolen a mule in this particular case, is that right? A. Yes, sir, that is the charge. Q. And you stole this mule sometime in October, 1936, is that correct? A. I couldn’t tell you whether that is correct or not.”

He also testified that an attorney of the Okmulgee county bar, Mr. Helm, appeared for him at his preliminary examination, and that he had since been appointed assistant county attorney and had withdrawn from his case. That when he was arraigned he told the court that he was represented by Anglin & Stevenson, but that he had reference to Mr. Anglin. That he did not mention that Leon C. Phillips represented him at that time. That he had paid Mr. Phillips after he was arraigned on the 11th day of January, 1937. He was then questioned by the county attorney, in the presence of the jury, as to his having three felony cases pending against him in Okfuskee county, and two in Okmul-gee county. He also was asked:

“Q. Now, since you were arraigned on January 11th, here in this court, you have been arrested on another felony charge?”

An objection to this question was sustained but the jury was present and heard the question asked. The county attorney then stated:

“I want to show that this man has five felony charges pending in these two counties, and never at any time did he state he was represented by Leon C. Phillips, and Mr. Phillips never appeared for him at any time.”

At this time, Mr. Long, who was appearing for Mr. Phillips, asked for permission to amend his motion for continuance to “cover the ground that Mr. Anglin is unable to attend this trial on account of illness”, stating at the time that he would get a doctor’s certificate. The county attorney stated:

“If Mr. Anglin’s office will send up a certificate and affidavit from Mr. Anglin that he represents this man, and is sick we will consider that as part of the motion, but that is not included in this motion. The Court: Yes, I permit you to amend the motion.”

The court further stated:

“It is not the intention of this court to place any defendant upon trial, upon a showing in good faith, that his attorney is a member of the Legislature, or that his counsel is ill.
“The court is not satisfied by the showing made by the defendant in this matter, and places the following requirements upon him:
“That he obtain an affidavit from Leon C. Phillips that the defendant employed said attorney on or about the first of December, 1936, and had paid him a fee as counsel in this case; that said employment is in good faith, and but for the fact that the Legislature is in session, said Leon C. Phillips would be ready to represent this man in the trial of his case.
“The court further requires that the defendant obtain an affidavit from Tom Anglin stating that he was employed as counsel in this case on or about the first of December, 1936, and that he has been paid a fee in this case; that he is now ill and unable to attend court; that his employment was in good faith, and but for the fact he is ill, he would be here representing the defendant in this cause.
“Upon failure of the defendant to obtain said evidence as outlined here, said cause will stand for trial on Wednesday morning, February 17”.

On February 16,1937, an affidavit for continuance was filed, and on February 17, 1937, a doctor’s certificate was filed. These instruments were as follows:

“W. T. Anglin, of lawful age, being first duly sworn on oath, deposes and says: That he is the attorney for Tom Gilroy’s wife in the Jackson Barnett estate; that when the above ease was filed against Tom Gilroy his client, Tom Gilroy’s wife talked to this affiant about representing him in said suit; that this affiant suggested that she employ Leon C. Phillips, of Okemah, Okla., and that he would advise with Mr. Phillips in the case; that Leon C. Phillips was employed to represent Tom Gilroy; that the employment was in good faith; that said Leon C. Phillips is now in attendance of the regular session of the Oklahoma Legislature at Oklahoma City, Okla., and cannot be in attendance of the trial; that this affiant is now and has been for about a week confined to his bed with the flu; that his partner is also sick with the flu and has been in bed for the past two days, and it is impossible for either this affiant, or his partner to be in attendance at the trial; and Leon C. Phillips being employed for the purpose of looking after the case personally cannot be in attendance at the trial because he is in attendance of the Legislature.
“Wherefore, affiant respectfully petitions the court to continue said cause for the term, or until some future date.
“Signed: Tom Anglin.”
“Holdenville Clinic
“Holdenville, Oklahoma
“Service of
“Dr. W. E. Floyd
“Surgeon
“To Whom This May Concern:
“This is to certify that Hon. Tom Anglin is and has been confined to his home in bed with influenza for a week and is now in no condition, mentally or physically, to try a lawsuit.
“Respectfully,
“W. E. Floyd, M. D.”

On the same date a motion and affidavit was filed by Leon C. Phillips. It was as follows:

“Leon C. Phillips, of lawful age, being first duly sworn says:
“That he is one of the attorneys for Tom Gilroy; that he was employed prior to the setting of this docket and many weeks ago by Tom Gilroy and his wife to represent him in all the matters then pending in all courts; that affiant is to be paid pursuant to the contract of employment out of funds recovered for the wife of Tom Gilroy, who is a claimant to a part of the estate of Jackson Barnett. That affiant is a member of the Legislature, and is now engaged in active duty in the session of the Oklahoma Legislature, and is unable to be present at the trial of this cause and has not been able to prepare for trial. That this affidavit is made in good faith; that the employment was taken in good faith and the obligation of attorney was agreed to be performed without any reference to the setting of the cause for trial, and the application for continuance is not made to hinder, vex or delay, but in order that justice may be done.
“Further affiant saith not.
“Signed: Leon C. Phillips.”

On February 18, 1937, when said cause was called for trial the defendant, Tom Gilroy, filed an additional motion and affidavit for continuance which covered the facts set forth in the motions and affidavits heretofore quoted, and in which it is stated:

“That if this defendant is forced to go to trial at this time he will be deprived of a fair and impartial trial and his constitutional and statutory rights to be represented by counsel of his choice. That the employment of said attorneys by this defendant was entirely in good faith, and this application for continuance is not made to hinder, vex or delay, but in order that justice may be done.
“Wherefore, this defendant prays the court to continue the trial of this case until such time as his said attorneys, or either of them can be present and represent him as counsel in his defense of this case.
“Dated this 16th day of February, 1937.
“Signed: Tom (Thomas) Gilroy.”

The court, after a consideration of the motion for continuance, announced: “Motion overruled. Exception allowed defendant.”

The defendant in person then made the following statement:

“I would like to have something taken down. (To the Reporter) I want you to take down, please: (Reading from paper) I want to file this motion and continue this case, and ask the court to continue -this trial, because I am not prepared to go to trial, because my attorney is unable to appear or be here.”

The court made a lengthy statement reviewing the different steps and proceedings of the motion for a continuance, and at the end of the statement, after a conference with the county attorney, the following proceedings were had:

“By the Court: Let the record show that Mr. G. L. Bynum, of the Henryetta Bar, is appointed by the court to defend this defendant in the trial of this case.
“By the Defendant: Your Honor, I have an attorney employed to defend me. I dont care to have anybody appointed to defend me, or help my attorneys, or talk with my attorneys. My attorneys have got the case in charge. Never talked to Mr. Bynum about this case, or any other attorney, and I object to Mr. Bynum or anybody else being appointed to defend me in this trial.
“The Court: Mr. Bynum is appointed to defend this man.
“The Defendant: Objection — I don’t want an attorney appointed.
“By Mr. Bynum: Does the court insist that I defend him?
“The Court: You are appointed. Mr. Wallace, I would suggest, in view of the defendant’s statement, and in view of the fact that the court at this time has appointed Mr. Bynum to defend this man, this defendant, the court will give Mr. Bynum a chance to look into this matter and get prepared to defend this defendant. We have other cases to try. This case will be reached on call.”

The case was called for trial on the same afternoon at 3:30 p. m. The jury which had been present and heard the proceedings with reference to the motion for continuance were empanelled and defendant was placed on trial without the presence of either of his counsel to represent him. The defendant was convicted and given the maximum punishment of 10 years in the penitentiary. A motion for new trial was filed February 20, 1937, by his attorneys, Leon C. Phillips and Tom Anglin. This motion for new trial was presented to the court on February 24, 1937. In addition to the petition for rehearing, statements were made into the record by Mr. Anglin and Mr. Phillips, and by the court and the county attorney. It was agreed, and so stated into the record by the court, that the statements were to be considered as sworn testimony of each of the parties. These statements and the evidence taken, reviewed in a careful way the different proceedings had by each of the parties from the time of the arrest of the defendant to the time of his trial and conviction. A great deal of it was a reiteration of the proceedings on the motion for continuance which has been heretofore stated. From the statements made, and the court would take judicial knowledge thereof, the special session of the Legislature, and of which the Hon. Leon C. Phillips was a member, convened on the 24th day of November, 1936, and the regular session convened on the 5th day of January, 1937, and was in session at the time of the trial of this defendant on February 18, 1937. The information in this case was filed against the defendant on the 27th day of November, 1936. The special session of the Legislature was convened on the 24th day of November, 1936. It is, therefore, contended by the state that the Legislature being in session at the time the charge was filed against the defendant it would have been impossible for Mr. Phillips to have been employed “prior to the convening of the Legislature”, and that under the decision in the case of Holloway v. State, 37 Okla. Cr. 24, 255 P. 1022, construing section 396, Okla. Stats. 1931 (Okla. St. Ann. Tit. 12, sec. 667), Mr. Phillips not having been employed prior to the convening of the Legislature, it was not error for the court to refuse a continuance under the statute, as a matter of right. We have carefully examined the case of Holloway v. State, supra, and we approve of the law therein announced. The facts in that case, however, are somewhat different from the facts in the case at bar. In that case the information against the defendant had been filed on March 12, 1923. His case was tried in the early part of March, 1925, a two years’ delay. From the time he was charged until the latter part of February, 1925, just before he was tried he was represented by Judge E. B. Arnold, a reputable attorney, and on the last Thursday in February, preceding this trial in the first days of March, he dispensed with the services of Judge Arnold and employed the Hon. John Goodall, a Senator, as his attorney. The Senate was in session at the time of his employment, and had been since the 6th day of January, 1925. The defendant knew that he was in the Senate and was informed that he could not be present at the trial, and was. informed that a motion for continuance would be filed. Under the above facts the court held that under the statute defendant was not entitled to a continuance as a matter of right. The court said (page 28):

“The purpose of this statute was, no doubt, to encourage members of the bar to become candidates for the lawmaking body of the state, and to protect a defendant whose attorney, presumably familiar with his case, could not attend his trial by reason of official duty, and to protect members in their business while serving the state in this capacity by preventing trials of cases where they are attorneys of record during a session of the Legislature and for ten days thereafter; that during this time they should not be disturbed in their duties as lawmakers. The privilege of a continuance as a matter of right applies only to a defendant whose attorney of record is a member of the Legislature. A member of the Legislature, during a session of the Legislature, also has the right to contract for any new business presented to him, and, if such business arises during a session of the Legislature, and he is employed, he would then be entitled to the benefits conferred by this statute. But, where an accused against whom a prosecution is pending prior to the convening of the Legislature, and who prior to such time has employed counsel as his attorney of record, he may not during a legislative session, by employing a member of the Legislature, procure a continuance on that ground as a matter of right. To give the statute the construction here contended for would put it in the power of every defendant at his pleasure to continue his case during a session of the Legislature. This we think is contrary to the spirit and meaning of the act in question.
“Under the facts presented in this case defendant’s application did not entitle him to a continuance as a matter of right, but such application was addressed to the sound discretion of the trial judge, and, no abuse of such discretion being apparent, the overruling of such application is not error.”

Under the facts in the case at bar, the defendant was arrested on the 27th day of November, 1936, just three days subsequent to the convening of the Legislature. Mr. Phillips had been the attorney of defendant in other important litigation, and had been associated with Mr. Anglin in this litigation for a period of two years. The defendant had other cases pending and Mr. Phillips was one of his regular retained attorneys. ’ This case was not tried after over two years of delays as in the Holloway Case, but was tried in less than 90 days from the time of the filing of the charges. The record discloses that immediately after the charges were filed against the defendant, he consulted and employed Mr. Anglin. That Mr. Anglin advised him to secure the services of Mr. Phillips also who was associated with him in the other litigation of defendant and his wife. That he made a payment of a part of the fee and made satisfactory arrangements for the balance. That defendant had no knowledge that Mr. Phillips was in the Legislature when he first sought to employ him at the suggestion of Mr. Anglin. There is a very grave doubt in our minds that when the law as announced by Judge Edwards in the Holloway Case is applied to the facts in the case at bar, it would not be in support of this proposition that the court erred in granting a continuance as a matter of right, and certainly under the facts of this case that it was an abuse of discretion to refuse a continuance under all the facts in the case. It was stated in the Holloway Case that the purpose of the statute was to* encourage members of the bar to become candidates for the lawmaking body of the state, and to protect the members in their business while attendant upon its sessions. Yet under the construction contended for by the state, he would be denied that protection because his regular and valuable client was arrested three days after the convening of the Legislature, he would be deprived of representing him because his duties as a member of the Legislature deprived him of the right, and he would thus in all probability lose his client. Such a construction would make the statute a burden rather than a help as it was evidently intended. By the statement in the Holloway Case, “A member of the Legislature, during a session of the Legislature, also has the right to contract for any new business presented to him, and, if such business arises during a session of the Legislature, and he is employed, he would then be entitled to the benefits conferred by this statute”, it seems to us it was intended to give the member of the Legislature the protection asked for in this case. And especially is this true where the employment was had at a special session, and the case was not called for trial until after the same had adjourned, and the regular session had convened. We adhere to the law as announced in the Holloway Case, because we do not think a defendant should be permitted to secure a delay of his trial by employing a member of the Legislature as his attorney after the Legislature is in session and thus secure a continuance, but this application should, as announced in that decision, be addressed to the sound discretion of the trial judge, and this discretion, taking into consideration all of the facts in the case, should not be abused.

But notwithstanding the question as to whether the court erred in not continuing this case as a matter of right because of the absence of Leon C. Phillips, one of his attorneys, we are of the opinion there was a clear abuse of discretion in refusing to grant the continuance of this case by reason of the motion for continuance by reason of the sickness of his attorney, Tom Anglin. The record clearly shows that Mr. Anglin had been the attorney of the defendant for a number of years. That he was representing him and his wife in important litigation in the federal court, where the wife was contending she was one of the heirs of the Jackson Barnett estate. That when he was first arrested he consulted him, and brought part of the fee to his office, and made arrangements to pay the balance out of litigation which he had for him. That he had personally attended to his business and that his partner Mr. Stevenson had never attended to any business of defendant. That prior to the calling of the case for trial, and on the 8th day of February, 1937, he was stricken with the flu. That it was impossible for him to be at his office, or to transact any business. That he was taken from his home in Holdenville to St. Anthony’s Hospital in Oklahoma City, and was there at the time of the trial. A doctor’s certificate, of a reputable physician, Dr. W. E. Floyd, was presented, which was dated February 15, 1937, and stated that he was confined to his home in bed with influenza for a week, and was in no condition, mentally or physically, to try a law suit. While the affidavit for continuance filed by Mr. Anglin on the 16th day of February, and upon the construction of which the court refused to grant a continuance may not have been as full as it should have been, it clearly showed that Mr. Anglin considered that he had been employed as an attorney. It was dictated at a time he was in bed sick, according to the doctor’s certificate, and by someone other than himself. When taken in connection with his sworn statement at the time of the presentation of the motion for a new trial, there can be no question of his being employed to represent the defendant in this case.

This case was tried by counsel appointed by the court and over the objection of the defendant. No witnesses had been subpoenaed in his behalf and he did not take the witness stand as he had a right not to do. His attorneys, in their statements to the court, when the motion for new trial was presented, stated that defendant had a defense which was not presented because of their absence. We, of course, do not know as to that. The defendant was given the maximum punishment by the jury. The county attorney, at the time the motion for new trial was being considered, stated:

“Mr. Phillips filed an application for continuance, it is true not as specific as the statement he makes today. If he had made that positive affidavit before the court passed upon the motion for continuance I would have very gladly confessed it”.

A careful reading of the record in this case convinces us that the court erred in refusing to grant the motion for continuance filed in this case. Johnson v. State, 45 Okla. Cr. 384, 283 P. 590.

For the reasons above stated it is ordered that the judgment of the superior court of Okmulgee county be reversed.

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


source: Caselaw Access Project

author: BAREFOOT, J.

license: Public Domain

text:
    JOE IRVINE v. STATE.
    No. A—9320.
    June 10, 1938.
    (80 P. 2d 599.)

      Con Long and Homer H. Bishop, both of Seminole, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Hubert Hargrave, Co. Atty., and Tom Big-gers, Asst. Co. Atty., both of Wewoka, for the State.
   BAREFOOT, J.

The defendant, Joe Irvine, was charged by information, in the county court of Seminole county, with the unlawful possession of intoxicating liquors, was tried, convicted and sentenced to pay a fine of $500, and to serve a sentence of six months in jail, and has appealed.

The first question presented by the record is that the court erred in overruling the motion for continuance presented in this case. The facts upon which this motion was based are as follows: The defendant was arrested on the 12th day of July, 1935, on which date an information was filed in the county court. An appearance bond was made by defendant on this same date. This bond was signed: “Joe Irvine, by J. W. Pipkin, his attorney, principal,” and two sureties. The case was set for trial on the 14th day of December, 1936. On this date the motion for continuance was filed, which was as follows:

“Comes now the defendant and moves the court to continue the trial of the above entitled cause now set for the 14th day of December, 1936, for the reason that Con Long, attorney of record for the defendant Joe Irvine is serving as a member of the Legislature of the State of Oklahoma, now in session, and that he has been unable to prepare this case for trial. Signed: Con Long.”

In the consideration of this motion witnesses were sworn and evidence taken. This testimony revealed that immediately upon the arrest of defendant he employed an attorney to make his bond; that this employment was only for the purpose of making bond and not for the purpose of representing him in the trial of his case; that during the month of May or June, 1936, he employed the Hon. Con Long to represent him in the case now under consideration, and certain other cases pending against him in the county court of Seminole county; that at this time he paid him the sum of $100, and that about two months prior to the time that this case was called for trial he paid him an additional $50, which constituted the total fee which he was to pay; that at the time this case was called for trial the Hon. Con Long was a member of the Legislature from Seminole county, and that the Legislature was in session at said time and had been since the 24th day of November, 1936. The above motion was presented to the court by the Hon. Homer Bishop, a member of the Seminole County Bar, as a courtesy to Mr. Long, who could not be in attendance on ithe court by reason of his duties as a member of the Legislature of this state, which was then in session. This evidence was uncontradicted on the part of the state. The Oklahoma statute in reference to this question is as follows: Oklahoma Statutes 1931, section 396, as amended by Laws 1935, p. 2, § 1, Okla. St. Ann., tit. 12, sec. 667:

The court may, for good cause shown, continue an action at any stage of the proceedings upon terms as may be just; provided, that if a party or his attorney of record is serving as a member of the Legislature or the Senate, sitting as a court of impeachment, or within ten days after an adjournment of a session of the Legislature, such fact shall constitute cause for continuance of the case, anci all motions, demurrers and preliminary matters to be heard by the court, the refusal to grant which shall constitute error, and entitle such party to a new trial as a matter of right. When a continuance is granted on account of the absence of evidence, it shall be at the cost of the party making the application unless the court otherwise order. And when any litigant has given notice of appeal from any judgment of any court of record in this state to the Supreme Court or Criminal Court of Appeals and the time for doing any act to perfect such appeal has, or does hereafter lapse during the session of the Legislature, whether regular or special, and the said litigant is a member of the Senate or House of Representatives, of the State of Oklahoma in such session, or his Attorney of Record is such member, such litigant or attorney shall have such time after the adjournment of the session of the Legislature to perform such act and complete his appeal as he had at the commencement of the session of the Legislature, of which he or his attorney of record was a member, and all acts done in the perfection of such appeals shall be as valid as if done within the time provided.

This statute (amended in some respects immaterial to this issue by article 1, chapter 2, Session Laws of 1935, and article 1, chapter 2, p. 1, Session Laws of 1937) has been construed by this court in the following cases: Holloway v. State, 37 Okla. Cr. 24, 255 P. 1022; Otey v. State, 39 Okla. Cr. 61, 263 P. 155, and Johnson v. State, 45 Okla. Cr. 384, 283 P. 590. It is contended by defendant that this case should be reversed by reason of the Johnson Case, supra, and the state contends it should be affirmed by reason of the Holloway and Otey Cases, supra, it being the contention of the state that the record does not disclose that the Hon. Con Long was an “attorney of record” in the case; that the motion filed by him was not sworn to, and nothing was filed in the case by him until the motion for continuance was presented. In answer to this contention it may be stated that the statute does not require this part of the motion to be sworn to, and for the additional reason that evidence was taken at the hearing on this motion, and the defendant testified that he had retained Mr. Long and paid him to represent him many months prior to the convening of the Legislature. No evidence was offered by the state to disprove this fact, and it, therefore, stands uncontradicted. While the evidence revealed the Legislature was in session at the time the continuance was asked, it would be the duty of this court to take judicial notice that the Legislature was in session, and that the Hon. Con Long was a member thereof. In the state’s brief it is stated:

“In said motion said Con Long is referred to as ‘Attorney of Record’ for the defendant, a description not supported by anything in the record and evidently untrue.”

The last part of this statement overlooks the fact that defendant testified to his employment of Mr. Long several months prior to the convening of the Legislature. We are aware of the fact that it is possible for cases to arise where testimony might be given as to the employment of an attorney which is untrue, but we are also aware of the fact that the filing of a motion by an attorney, when the facts upon which it is based are untrue, would be a cause for his disbarment in this state. We hardly think that an attorney would run the risk of filing such a motion for continuance, based upon the fact that he was employed to represent a defendant, when in truth and in fact he did not represent him and was not employed until after the Legislature was in Session. At any rate the uncontradicted evidence in this case reveals that Mr. Long was employed as attorney for defendant, and had been paid his fee long prior to the convening of the Legislature, and that he was in attendance upon his duties in the Legislature which was in session at that time. The facts in this case bring it clearly within the facts of the Johnson Case, supra. For future guidance we would suggest that members of the Legislature, who are attorneys for defendants and have been employed prior to the convening of the Legislature, would do well to have the clerk of the court note their appearance on the record at the time of their employment, and then there could be no doubt of their being “attorneys of record” prior to the convening of the Legislature, but as above stated, in the case at bar, the undisputed evidence shows that Mr. Long was employed long prior to the convening of the Legislature, and no evidence was offered by the state to disprove this fact. The Legislature of the state has seen fit, in its wisdom, to say that these facts are sufficient for the granting of a continuance in this state as a matter of right. We, therefore, are of the opinion that the court erred in refusing to grant the motion for continuance filed in this case.

Other questions are raised in the brief of defendant which it now becomes unnecessary to pass upon as they will not occur in a retrial of this case. It is, therefore, ordered that the judgment of the county court of Seminole county be reversed, and defendant granted a new trial.

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


author: DOYLE, J.

text:
    ALBERT McCORMICK v. STATE.
    No. A—9423.
    June 10, 1938.
    (80 P. 2d. 598.)

      Billingsley & Kennerly, of Wewoka, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DOYLE, J.

The information in this case, filed in the superior court of Seminole county August 4, 1936, charged the defendant, Albert McCormick, and three others with the theft of five one year old calves, the personal property of Sam Simpson, alleged to have been committed in Seminole county on or about the 1st day of April, 1935.

Upon arraignment the defendant entered a plea of not guilty.

The record shows that when the case was called for trial, May 17, 1937, the defendant, Albert McCormick, waived his right to a jury trial and it was agreed by and between the parties to try the case to the court.

The evidence on the part of the state shows that on the date alleged the calves in question were taken from Sam Simpson, the owner’s place, two miles south and one mile east of Seminole, and the following day were found in Push-mataha county, near the home of the defendant, Albert McCormick. About a year later, the defendant, Albert McCormick, was arrested in Attica, Mich.

George Snyder testified that as agent for the state he went to Attica, Mich., and returned the defendant, Albert McCormick, to Seminole county; that said defendant voluntarily admitted that he had participated in the theft of the calves.

When the state rested the defendant also rested his case and filed a demurrer to the evidence on the ground that the same is insufficient to support the charge of larceny of domestic animals, which was overruled. Exception allowed.

At the close of the arguments the court announced “that under the evidence the court is of the opinion the defendant is guilty as charged.”

On June 29,1937, a motion for new trial was overruled. Thereupon the court rendered judgment and sentenced the defendant, Albert McCormick, to serve a term of two years in the state penitentiary at McAlester and to pay the costs.

From this judgment the defendant appealed, but no brief has been filed or appearance made in this court, and the case was submitted on the record.

The motion for new trial was based on the alleged insufficiency of the evidence to warrant a conviction, and the errors assigned are based on the same ground.

The rule repeatedly announced by this court is, that it has no power to reverse a judgment of conviction upon the ground that the verdict is not supported by the evidence, unless there is no substantial evidence tending to show defendant’s guilt, or the evidence fails so far to support the verdict that the fair inference is that the jury must have acted from passion or prejudice. Hart v. State, 57 Okla. Cr. 372, 48 P. 2d 337; Jamison v. State, 59 Okla. Cr. 62, 56 P.2d 905.

This court has repeatedly held that all that is required by the appellate court in determining the sufficiency of the evidence to support a conviction is to find that there is evidence in the record which forms a sufficient basis for the verdict of the jury. Whitten v. State, 25 Okla. Cr. 447, 221 P. 115; Pickett v. State, 35 Okla. Cr. 60, 248 P. 352.

Upon the undisputed facts as shown by the record it is apparent that there is substantial evidence tending to show the defendant’s guilt, and we think it is simply sufficient to justify and support the finding of the trial court, and the judgment entered thereon.

Accordingly, the judgment of conviction is affirmed.

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


text:
    JAMES L. HADDOCK v. STATE.
    No. A—9366.
    June 24, 1938.
    (81 P. 2d 339.)

      Grigsby & Andrews, of Ada, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and W. V. Stanfield, Co. Atty., of Ada, for the State.
   BAREFOOT, J.

The defendant was charged by information in Pontotoc county with the crime of murder, was convicted of manslaughter in the first degree, and sentenced to 20 years in the penitentiary, and has appealed.

The defendant was charged with driving a 1935 Ford coupe automobile on the 21st day of November, 1936, while under the influence of intoxicating liquor, and in a reckless and careless manner, and that by reason thereof did strike one M. B. Maner, and that by reason of the injuries received, killed him, the said M. B. Maner.

The first proposition presented by the defendant is that the court erred in overruling his demurrer to the evidence, in refusing to direct a verdict in his favor, and that the verdict of the jury is contrary to the law, and against the weight of the evidence. In other words it is contended that the evidence is insufficient to sustain the verdict.

The record reveals that defendant was charged with murder in connection with the killing of M. B. Maner, on Highway No. 19, about two miles west of Ada, Pontotoc county, on the night of November 21, 1936. Deceased and his family were coming east on said highway in a Model A Ford roadster. They stopped near the Sandy bridge west of Ada to fix a flat tire, on the right front wheel. They drove to the right side of the road and stopped the car about two or three feet from the bar pit south of the highway, and 27 feet from the north side of the car to the north edge of said highway. This was the exact measurement taken by the officers, as the car was not touched in the accident and was in the same position. The right wheel had been jacked up and rocks had been placed under it. The wife of defendant and two small children had gotten out of the car and were sitting by the side of the highway at the time of the killing. A small boy, ten years of age, and a brother of deceased’s wife had assisted him in fixing the flat tire by holding a flashlight. After fixing the tire, deceased and the boy were in the act of tightening the lugs on the left front wheel when an automobile, approaching at a high rate of speed from the east on said highway, struck deceased and the boy, carrying the boy 75 feet, and the deceased 150 feet down said highway and so injuring deceased that he died on November 24, 1936.

The proof on behalf of the state, and by the wife of deceased, was that she saw the car coming at a high rate of speed; that it was on the left or wrong side of the road; that the car hit her husband and dragged him about 150 feet west of the parked car, and her little brother about 75 feet from said car; that the automobile did not stop but went on west and the driver did not come back. She thought the car was a one-seated car and was a Ford V-8; that the lights on both cars were burning. She identified certain clothes consisting of the blue overalls and shirt worn by the deceased which were introduced in evidence. She testified that the killing occurred between 7:30 and 8 o’clock at night.

The sheriff of Pontotoc county, Clyde Kaiser, and one of his deputies, Charley Shockley, were called to the scene of the accident around 7:30 p. m. They saw the lights of the cars which were parked near where the accident had occurred, and when they arrived they found the car jacked up with rocks under it. It had been untouched and was in two or three feet of the bar ditch on the south side of the road. They measured the distance from the north side of the car to the north side of the road and it was nine steps or 27 feet. They found pieces of glass on the south side of the road, and about 150 feet west they found other glass, a pocket knife, a button and a mill. They testified that the tracks of the car showed to have been on the left side until it reached a point about 150 feet west of the parked car where it turned on to the right side. They found two pools of blood, one about 45 feet west and north of the parked car, the other pool of blood was about 150 feet west and north of the parked car. Proceeding with their investigation, the officers went west on the highway for about a quarter or a half mile and stopped at the residence of Tobe Bailey. Their reason for stopping was that they saw car tracks, which bore evidence of having recently turned in there. They found two cars, one, an old Chrysler, and the other a Ford V-8 coupe. The left fender on the V-8 coupe was badly bent up, the lights on the left side were broken, the headlight and both bulbs being broken. This car was taken to town and examined the next morning by the sheriff and other witnesses, after being placed on a rack and raised by air pressure so it could be examined underneath. They found appearances of something having dragged on the grease and oil pan, and what they took to be blood spots, but no blood test was made by one competent to do so, which should have been done. They also removed a piece of blue cloth, and some hair and skin. The cloth was introduced in evidence and was inspected by the jury in comparison with the overalls worn by deceased. The sheriff and his deputy found defendant inside the house of Tobe Bailey on a bed, with blood on his face and head, and Mrs. Bailey was washing the same off. Both of the officers testified that defendant was drunk at the time they found him. Other officers testified that he was drunk when brought to the jail. Defendant was placed in jail and afterwards charged with murder.

Dr. I. L. Cummings testified to examining deceased as to his injuries, and to his death on November 24, 1936, by reason of said injuries. Other witnesses testified for the state in reference to bringing the car, examining the same, and their testimony corroborated that given by the sheriff and his deputy.

The defendant, testifying in his own behalf, contended that the killing was done by someone other than himself; that he had passed the scene of the accident about 6:15 p. m.; that there was no parked car there at that time, and that he had no accident. His testimony was that he lived in Ketchum, Craig county, Okla.; that he worked for the Arrow Drilling Company, and that for two months prior to November 21, 1936, he had been in the hospital with a hurt leg and back and a skull fracture; that a few days prior to the 21st day of November, 1936, he had come to Oklahoma City from Ketchum, and from there to the city of Ada, on November 21st, arriving there about 2:30 p. m., and without stopping went direct to the residence of Tobe Bailey for the purpose of trying to collect $12 which Tobe Bailey owed him for an old Chrysler car which he had sold him; that he remained there 30 or 40 minutes and returned to the city of Ada; that he was trying to see a driller for the purpose of getting a job for a boy named Louie Redman, who lived at Tobe Bailey’s. After being in town for a short while he went to a cafe known as John’s place, and there met a man and his wife and some girl, and they had a bottle of beer. After talking, to these parties whom he claimed to have known before, they went in this party’s car for a ride over the city. The man and his wife rode in the front seat and defendant and the girl rode in the back seat. Just before six o’clock they returned to John’s place where defendant had parked his car, and when he got out of the car he met Louie Redman, the boy for whom he was trying to get a job, and another party by the name of' Doc Corbett. He had a conversation with Louie Redman in reference to the job and he asked defendant, “What’s the matter with your face ?” He then explained that he had some words with the girl with whom he was riding in the back seat, and that she had struck him with a pocket book which had a brass knob and had scratched his face. This evidence was given by him in explanation of why Mrs. Bailey was seen later washing the blood from his face at the time the officers arrested him in the Bailey home. This testimony was corroborated by Louie Redman, Doc Corbett and Mrs. Bailey. He testified that he left John’s place in his own car going west to Tobe Bailey’s place just about dark. A weather report was introduced by defendant and showed that artificial light was necessary on November 21st, at 5:48 p. m., in order to distinguish objects on the outside. That he remembered turning on his lights just before he got to the bridge. That he did not see any car parked by the road fixing a tire; that he passed several cars on the highway; that he did not run into any car, or strike anybody. That it was “good dark” when he got to Tobe Bailey’s. He got out of his car, went into the house and talked with Mr. and Mrs. Bailey. He told her he was sick, had a headache, and that a girl had scratched his face. That he did not feel like eating supper, and that he took four or five aspirins which were in a box and attempted to go to sleep. He thinks he slept about an hour and was asleep when the officers came; that Mrs. Bailey waked him up and was washing his face when the officers came in the house. He testified that he was not drunk, or under the influence of intoxicating liquor, but had only had a part of one bottle of beer; that the officers arrested him and took him to jail and also took his car; that the information which he received from the officers was the first that he knew that anybody had been hurt. In explanation of the condition of his car he claimed that he had a wreck at his home in Ketchum a few days prior to November 21, 1936. That he turned a sharp corner and his car skidded into a mail box. That the head light and the bulbs in the left light were broken. That several little rods were broken on the car at that time and that the left fender was bent. Several witnesses from Ketchum corroborated defendant’s testimony on this point, and also the garage man who worked on his car and who testified that he fixed the car but did not straighten the fender and did not fix the head light. Defendant, two days after his arrest, gave a written statement to the county attorney and the sheriff of Pontotoc county. There was a sharp conflict in the statement so made and the evidence given by defendant at the time of the trial. From the above statement it will readily be seen that there was conflicting testimony which was passed on by the jury in this case. They had the opportunity to see and hear the witnesses in this case, to observe their demeanor upon the witness stand, to examine the automobile, the glass that was found at the scene of the accident, to compare the cloth found by the officers on defendant’s car and compare it with the clothing worn by the deceased at the time of the killing. Part of the evidence relied upon by the state was circumstantial. After hearing the testimony and a fair presentation of the law in the case by the court, the jury found the defendant guilty, and under the prior decisions of this court this verdict will not be set aside where there is sufficient evidence to sustain it, as there is in this case.

It is contended by defendant that the court erred in permitting the county attorney to propound certain questions to defendant which were asked him at the time he made a statement to the county attorney and sheriff, two days after his arrest, and the refusal of the court to permit the whole statement to be presented to the jury as requested by defendant. Under the law the contention of defendant is correct. Foster v. State, 8 Okla. Cr. 139, 126 P. 835; Wigmore on Evidence (2d Ed.) vol. 4, p. 508, sec. 2113; 16 C. J. pages 571, 634, and 723; 2 A.L.R. pages 1017 and 1022; Levy v. State, 49 Ala. 390; People v. Murphy, 39 Cal. 52; Williams v. State, 69 Ark. 599, 65 S. W. 103, 12 Am. Cr. Rep. 110; Morrow v. State, 48 Ind. 432. And had there not been a waiver of defendant of this right as shown by the record in this case, the same would have to be reversed and remanded for a new trial. The court at first refused the defendant the right to offer the whole of the statement, but afterwards the state placed upon the witness stand a witness, Kittie Bowen, who had taken the statement in shorthand and transcribed the same and who counsel for defendant admitted was qualified and competent to' take the statement and properly transcribe the same. After testifying that she had taken the statement in shorthand, and properly transcribed the same on the typewriter, and the county attorney was preparing to introduce the statement in evidence, counsel for defendant said:

“By Mr. Grigsby: We will admit those are the notes, and they can be admitted as a part of the evidence in this case. The county attorney can use them for whatever purpose he wants.”

It will thus be seen that the whole of the statement was introduced in evidence by the admission of counsel for defendant, and the right to refer to it by the county attorney in his closing argument cannot be questioned after the admission made by counsel for defendant. When this opinion was first written in this case neither the brief of defendant or the state called attention to this admission upon the part of counsel for defendant.

Certain witnesses were introduced by defendant who testified that they passed by the place where the killing occurred and after it happened. That they saw the car standing by the side of the road jacked up and in their opinion it was eight or ten feet from the bar pit on the south side of the road. This evidence is in direct conflict with the testimony of the officers and others who measured the distance, and the jury, no doubt, came to the conclusion, as they had the right to do, that the testimony of the officers was true, as the other parties were passing in a car and did not stop to examine the location and the distance.

It is urged by defendant that certain incompetent and irrelevant evidence was introduced. In this connection defendant was asked as to what was the reputation of “John’s place.” He answered that in his opinion it was a sandwich shop, and when asked if he did not know it was a beer joint, the court properly sustained an objection. The defendant was charged with murder and the reputation of “John’s place” was immaterial in this case, but nothing with reference to this was of sufficient importance to require a reversal of this case upon this point.

The cross-examination of Juanita Hudson, a witness offered by defendant, is complained of by defendant. This witness was about 14 years of age, and had been before the juvenile court of Pontotoc county. The county attorney questioned her with reference to this matter; the court held that he could ask her if she had been convicted and placed on probation. This is complained of by reason of section 1729, Okla. Stats. 1931 (Okla. St. Ann., tit. 10, sec. 101). The evidence given by the little girl was only cumulative of the testimony given by several witnesses. It revealed nothing of a substantial nature and in our opinion in no way had any influence on the jury in reaching its verdict in this case. We have examined the other objections and do not find any that would warrant a reversal of this case.

Other errors assigned by the defendant are that the court erred in refusing certain requested instructions and that the county attorney committed reversible error by statements made in his closing argument to the jury. The instructions given by the court were very fair and fully presented the issues of the case and covered the points asked in the requested instructions. The court gave a very fair and complete instruction upon the question of circumstantial evidence as favorable to the defendant as could be expected. The closing argument of the county attorney appears in the case-made and it was a very fair and strong presentation of the state’s case. It is further urged by the defendant that the punishment in this case is excessive. We have carefully reviewed this record from all standpoints, and have come to the conclusion that the ends of justice would be met by modifying the judgment in this case from a period of 20 years in the penitentiary to a period of ten years in the penitentiary. In doing this we have taken into consideration the fact that a statement was taken from the defendant by the county attorney at a time that he was in jail and without counsel to represent him and before he had a preliminary examination, and there is nothing in the record to show that he was warned that any statement which he might make could be used against him.

For the reasons above stated, it is the judgment of the court that the sentence in this case be modified from 20 years in the penitentiary to ten years in the penitentiary, and as so modified is affirmed.

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


text:
    H. P. CRAIGO et al. v. STATE.
    No. A—9439.
    June 24, 1938.
    (81 P. 2d 336.)

      Goode, Dierker & Goode, of Shawnee, and Hal Johnson, of Albuquerque, N. Mex., for plaintiffs in error.
    Mae Q. Williamson, Atty. Gen., for the State.
   DOYLE, J.

H. P. Craigo and H. C. Robinson were jointly charged, tried and convicted of unlawful possession of intoxicating liquor. Motions for new trial were made, and on October 27, 1937, overruled. Thereupon the court, in accordance with the verdict signed by five jurors, sentenced each defendant to be committed to the county jail of Pottawatomie county for a period of 90 days and to pay a fine of $250. To reverse the judgment they appeal.

The errors relied on question the sufficiency of the evidence to sustain the verdict, and are based on exceptions taken to rulings of the court on the admission and exclusion of testimony, also on exceptions taken to the refusal of the court to give requested instructions and on exceptions taken to certain instructions given by the court.

The offense is alleged to have been committed on the 17th day of May, 1937, when a convention was being held at the Aldridge Hotel.

The facts as shown by undisputed evidence are the Aldridge Hotel, a nine story building, located corner of Bell and Ninth streets, Shawnee, has 250 guest rooms, several business offices, and a basement in which is a barber shop, a cleaning and pressing shop, a store room and four locker rooms. One of the locker rooms being the negro change room and toilet. The lobby of the hotel is on the main floor, three elevators, two passenger and a freight elevator pass through the lobby into the basement. There is also a stairway from the lobby into the basement, and two stairways leading from the basement to the street, which do not pass through the lobby. The manager’s office is in the lobby behind the clerk’s desk.

Prior to February 18, 1937, the Aldridge Hotel was operated through a receivership proceeding in the district court of Pottawatomie county. The defendant Robinson had worked as an auditor for the receiver, Mr. Phillips, from February 8, 1936, to February 18, 1937, at which time the receiver was discharged and the Lutke Corporation operated the hotel until March 15th. The defendant, Robinson, remained in the hotel as auditor for the Lutke Corporation. On March 15th, the defendant, Craigo and George Lee Parent of Tulsa, leased the hotel from the Lutke Corporation, and the defendant Robinson was employed by them as manager of the hotel.

Sheriff Elixa Evans, accompanied by two deputies, went to the hotel, served a copy of a search warrant on the hotel clerk, then went down into the basement and into the locker room, used by the negro porters as a room in which to change from their uniforms into street clothes. The lockers in which the negro porters kept their clothes and personal effects while on duty had locks bought by the porters themselves. The hotel manager did not have keys to any of these lockers. Sheriff Evans proceeded to break the locks of these lockers and found 104 pints of tax paid whisky. He arrested three negro porters. Eight days later Sheriff Evans verified the information charging the defendants Craigo and Robinson with the unlawful possession of 104 pints of whisky. On the evening of the raid at the hotel, the defendant, Craigo, accompanied by an auditor, arrived in Shawnee from Tulsa, and was in his room washing up. When informed that Sheriff Evans was raiding in the basement, he put on his clothes and went down and found the officers in the negro locker room; the defendant Craigo lived in Tulsa and came to Shawnee about twice a week and checked over the receipts of the hotel; the defendant, Robinson, at the time of the raid was the manager of the hotel and lived in the hotel with his family.

Over the defendants’ objections. Exceptions reserved. Elixa Evans, sheriff, testified as follows:

“I called telephone 2805 around 6 o’clock in the evening of May 17th; it was answered. I said, ‘Who is this?’ He said, ‘This is the bell boy at the Aldridge Hotel,’ I asked him if he had any whisky; he asked me who it was. I said, ‘This is Roy Youngblood.’ He said, ‘Yes, come on down to the basement.’ I sent Dave Parsons, night jailor, to the Aldridge Hotel, where he bought a pint of whisky; I gave him a $5 bill. Dave Parsons when he went down there did not have any whisky; I saw Dave Parsons about 15 minutes later at the sheriff’s office. He gave me a pint of bonded whisky; I immediately procured the search warrant and made the raid.”

Motions to strike overruled. Exceptions.

Dave Parsons, over the defendants’ objections, testified:

“On the night of May 17th, I went down there and bought some whisky from a colored fellow named ‘Arthur Smith’ in the basement of the Aldridge Hotel. He was dressed in uniform. He said he worked for the hotel; I gave him $2 for the whisky and took it to the sheriff, I went back and raided the hotel.”

Motions to strike this testimony of the witness overruled.

At the close of the evidence for the state the defendants separately demurred thereto, and moved for a directed verdict of acquittal, which was overruled.

The defendant, Craigo, testified:

“I have lived in Tulsa 29 years, I operate the Densmore hotel there; Mr. Parent and I leased the Aldridge Hotel in Shawnee from the Lutke Corporation; we took possession March 15, 1937; Mr. Robinson was made local manager; I spent the first 10 or 12 days remodeling the coffee shop; prior to May 17th, I came to Shawnee every week to check the accounts; I had nothing to do with the operation or the management of the hotel or the hotel employees during that period of time or since.”

The defendant H. C. Robinson testified:

“I have been connected with the hotel since December 28, 1935; I first worked for the Hotel Corporation of Oklahoma, when Mr. Phillips was appointed receiver; I worked as auditor from February 8, 1936, to February 18, 1937, when the receiver was discharged, then the Lutke Corporation operated it. I worked as auditor from February until March 15th, then Mr. Craigo and Mr. Parent took possession; I was retained as manager; on May 17th I was at the hotel in charge; the first information I had of the sheriff searching the premises was when the clerk came into the coffee shop where my wife and I were eating dinner and told me the sheriff was raiding the hotel; I went down to the locker room. The bell boys keep their uniforms there in the lockers, there are padlocks on the lockers and the hotel management do not have keys for these lockers; when I saw the whisky on the floor, it was the first information that I had that whisky was stored in these lockers, or anywhere in the hotel. From the time I took over the management on March 15th, there has not been any whisky sold or stored in the hotel to my knowledge.”

At the close of all the evidence in the case, the defendants again renewed their demurrer thereto, and moved for a directed verdict of acquittal, which was overruled.

The evidence offered as tending to connect the defendants with the offense charged was entirely circumstantial. In this connection counsel for the defendants presented an instruction on the law of circumstantial evidence, and requested the court to give the same to the jury; this request was refused, and the court refused to charge on the law of circumstantial evidence.

The instruction presented and requested to be given was the approved form of the law of circumstantial evidence.

It has been uniformly held by this court that where the evidence is entirely circumstantial, it is error for the trial court to refuse to give an instruction upon the law of circumstantial evidence. Silva v. State, 11 Okla. Cr. 12, 141 P. 235; Baldwin v. State, 11 Okla. Cr. 228, 144 P. 634; Klein v. State, 26 Okla. Cr. 173, 223 P. 201; Harrell v. State, 33 Okla. Cr. 364, 244 P. 457; Moore v. State, 34 Okla. Cr. 277, 246 P. 648; Williams v. State, 38 Okla. Cr. 370, 261 P. 977.

It is true that the jury must judge of the weight of the evidence, but when evidence is introduced which only indirectly tends to raise an inference of guilt, and the importance of which must depend altogether upon circumstances, it is the right of the defendant to have the jury instructed how these circumstances bear upon the presumption of guilt.

It follows that the defendants were entitled to the instruction requested and the refusal of the court to instruct on the law of circumstantial evidence was reversible error.

It is earnestly insisted that the evidence is insufficient to support the verdict.

Counsel for the defendants in their brief say:

“From the analysis of the evidence it will be seen that the whisky was actually found in the possession of some bell boys and that it was located in a place to which hundreds of people had access, and over which defendants were not exercising any particular supervision or control except such as might be incidental to the management and operation of the hotel. That it was quite possible for whisky to be taken into this place or removed therefrom without the manager . of the hotel being aware of the conditions existing. That the whisky was seized at the time when a state convention was being held at the hotel and a large number of people were present in and around the hotel. * * * The defendants vigorously denied any knowledge of the presence of the whisky and any interest therein. This being true, we respectfully urge that the evidence did not meet the standards of proof which have been heretofore prescribed by this court in previous decisions.” Citing Harrell v. State, 33 Okla. Cr. 364, 244 P. 457; Williams v. State, 38 Okla. Cr. 370, 261 P. 977; Silva v. State, 11 Okla. Cr. 12, 141 P. 235; Dorsey v. State, 44 Okla. Cr. 7, 279 P. 917.

Where the attempt is made to convict a person and to hold him criminally responsible for the acts of his employee, it must be clearly shown that such act was reasonably within the scope of the agent’s employment, or was an act done within the course of the principal’s business. Simpson v. State, 14 Okla. Cr. 484, 173 P. 529.

In Dyer v. State, 26 Okla. Cr. 394, 224 P. 372, it is said:

“Where peace officers seize a quantity of whisky in different containers, together with some empty vessels, hidden in a toilet room of a hotel, and in an adjacent entry room containing bags of feed, stoves, boxes, and junk, through which room hotel guests and others pass to and fro to the toilet, such seizure is not of itself sufficient proof to support a conviction of illegal possession against the owner of the hotel, who lives there with his family but was during that day and at other times before such seizure actively engaged in another business at another place.”

Where the state relies for a conviction upon circumstantial evidence, the facts proven must be such as to exclude every reasonable hypothesis other than the guilt of the defendant of the offense charged in order to sustain a conviction. In our opinion the evidence in this case does not meet this requirement, and for this reason we think it would have been a proper exercise of the power vested in the trial court to have advised an acquittal of the defendants upon the ground that the evidence was insufficient to connect them with the offense charged.

For the reasons stated, the judgment appealed from is reversed and cause remanded, with direction to dismiss.

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


text:
    JOE TEAGUE v. STATE.
    No. A—9373.
    June 24, 1938.
    (81 P. 2d 331.)

      Wall & Green, of Sallisaw, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Ed J. Armstrong, Co. Atty., of Sallisaw, for the State.
   BAREFOOT, J.

The defendant was charged jointly with Fred Bert Smith and Bob Nichols with the crime of larceny of live stock in Sequoyah county, was granted a severance, tried, convicted and sentenced to serve a term of five years in the penitentiary, and has appealed.

The first assignment of error is that the verdict and judgment is contrary to law and the evidence and that the evidence is insufficient to sustain the judgment and sentence, it being contended that the mule which it was alleged the defendant stole was: (1) Never identified as being the mule of Wesley DuBuc. (2) That the testimony of Fred Bert Smith, the accomplice, had been discredited and impeached and was not corroborated.

These contentions may be considered together and of necessity will require a review of the evidence.

The defendant was charged with the larceny of an iron grey mule, the property of Wesley DuBuc. The owner testified that on or about the night of November 18, 1936, he missed from his pasture near Gans, Sequoyah county, Okla., “an iron grey mule, heavy built, big boned, thick heavy bushy tail, dark brown on his legs, lighter on his back, and a flea bitten face”; that this mule had a water seed. He made an investigation and found that the mule had been taken to the Williams Sale Barn, which is located at Moffett, Sequoyah county, Okla., and near Ft. Smith, Ark., and sold on the night of November 18,1936, and shipped to Memphis, Tenn. He went to Memphis and found that the mule had died after being shipped there and had been skinned. He found the hide and identified it as being taken from the mule owned by him and which had been stolen from his premises.

Fred Bert Smith, who was indicted jointly with this defendant, and who, under the law of this state was an accomplice, and whose testimony would, therefore, have to be corroborated, testified as a witness for the state. He said he had known Wesley DuBuc all of his life; that he had worked for him, and had worked the mule which was stolen and ridden behind it; that he had known the defendant Joe Teague for a couple of years, and that he had known his co-defendant Bob Nichols for two or three years, and had at one time lived a neighbor to him; that several weeks prior to November 18, 1936, the three of them had a conversation with reference to stealing some mules, and that defendant Joe Teague, who bought and sold mules on the market at Williams barn at Moffett, had told them he could use some “hot” mules, and that he would sell them on the “halves”; that about two weeks prior to the stealing of the mule on November 18, 1936, he and Bob Nichols had made an attempt to steal the DuBuc mule, and the defendant Joe Teague had made arrangements for a truck to meet them on the highway by the side of the road, and get the mule; that he and Bob Nichols went out for the purpose of getting the mule, but did not get it on that night; that he went on home and Bob Nichols went up the road to meet the truck. This testimony was afterwards corroborated by Jeff Lambert, who owned and operated a truck; that he had a talk with the defendant Joe Teague and agreed to send a truck up the highway near Muldrow (this was where the stolen mule was afterwards loaded) at night for the purpose of getting two mules; that he did not know they were stolen. He sent two men who were working for him, J. W. Mc-Water and Roy Goodwin. Both of these witnesses testifying for the state stated that they went in the truck after the mules; that the defendant Joe Teague told them where to go, and that they would meet a man by the side of the road with the mules; that they met a man by the side of the road whom they identified as the codefendant Bob Nichols; that he got in the truck and rode with them, and that they went nearly to Sallisaw, but did not see anyone with any mules and returned about 11 o’clock. The witness Fred Bert Smith then testified that he saw the defendant on the evening of the 18th of November, 1936, and that defendant told him he could use “them mules now”, and that he and the defendant, and his codefendant agreed to get the mule that night; that defendant made arrangements for the truck to meet them, and that he and Bob Nichols left the barn about 4 o’clock and went south, and that they went into the pasture and got the mule; that Bob Nichols got in the car and went back, and that he led the mule to the foot of Nolin Hill, and Bob came there with the truck about 10 o’clock at night; that they loaded the mule on the truck and took it to Moffett to the back of the Leon Williams Barn and unloaded it; that Bob Nichols led the mule into the truck after they had blindfolded it, and he and the boy who was driving the truck punched it into the truck.

George Freeman, the boy who drove the truck, corroborated the witness’s evidence to this effect. He testified that the defendant Joe Teague came to where he was on the night of November 18, 1936, after the sale had closed, and about 10:30 or 11 o’clock, and asked him if he had his truck with him, and he said “a boy had a mule, two mules, he wanted me to go and get”. He identified Bob Nichols as being the boy who said he had a couple of mules he wanted him to go and get, and that they got in the truck, and went close to a little town and turned over on a hill, “and there came a boy leading a mule up the road”. That they loaded the mule on the truck, and brought it to the Williams barn at Moffett, just as the witness Fred Bert Smith had testified.

Smith testified to the unloading of the mule by himself, Bob Nichols, George Freeman, the truck driver, and a negro boy who worked at the barn named “Doe”. That the mule was sold at the Leon Williams barn that night for $117; that the defendant Joe Teague and Bob Nichols came to the rear of the barn soon after the mule was unloaded; that the check was made out in his name; that the boy who drove the truck, George Freeman, wanted his pay, and he tried to cash the check, but could not do so; that George Freeman went and saw the defendant Joe Teague and he indorsed the check and Jack Gentry, the proprietor of the Brown Bungalow, cashed the check, giving him $13 in money and a $61 check and a $43 check; that he paid the truck driver, George Freeman, $3, gave the $61 check to Bob Nichols, and he cashed it at Bob Harper’s; that he took the $43 check and cashed it at Jack Gentry’s and gave the defendant Joe Teague $12.50 of it, and gave the balance to Bob Nichols, and he only got $21 out of the check; that he was afterwards arrested and put in jail and made a statement to the officers which was the same as he was now making on the witness stand; that he was scared at the time he made the statement.

Frank Carson, testifying as a witness for the state, said that he was in the livestock business and had known the defendant Joe Teague for 8 or 10 years; that he knew Fred Bert Smith and Bob Nichols; that he saw them on the night of November 18, 1936, at the Williams mule barn in Moffett about 11:30 or 12 o’clock at night; that the defendant Joe Teague came to where he was at the Brown Bungalow and told him that there was a fellow that had a mule “and let’s go buy him”; that they went to the loading chute and there saw a mule, giving the same description as that given by the owner Wesley DuBuc; that the negro boy led the mule to the front of the barn where it was light, and Joe Teague said to him: “Give this fellow a check for $117,” and that he gave it to Fred Bert Smith; that he did not buy the mule but only did the paying for it; that it was not usual for transactions at the barn to be carried on in this manner; that the usual way was for the sale to go through the owners of the barn and they would pay the owner and take out the commission and the sale would appear upon the books. The defendant Joe Teague tried to sell the mule that night to some party who needed a few mules to make out a shipment but because of a blemish was unable to do so, and the mule was taken to the pens of the defendant. The next morning he met the defendant and Clyde Smith, a brother of Fred Bert Smith, and one of them informed him the mule had been sold to a Mr. Carroll of Memphis, Tenn. He testified that this was the first time he had been associated with the defendant in the purchase of mules and that he did not know it was a stolen mule.

L. E. Beeland testified that he was in partners with Leon Williams in the horse and mule business; that he knew Joe Teague, who was working at the barn, and the company furnished him money to work on. The defendant would purchase mules and horses and the company would pay for them, and the profits would be split between them. Books were kept and final settlement made at the end of the year. The defendant had the authority to draw drafts upon him and his partner for the purchase of horses and mules at any time.

Defendant called several witnesses to the stand who testified to facts with reference to the mule being brought to the Williams barn on the night of November 18, 1936. There was no substantial variation in their testimony and that of the state’s witnesses heretofore reviewed. Several witnesses testified to impeach the witness Fred Bert Smith, saying that his reputation for truth and veracity was not good. Some of the witnesses called did not know his reputation, and others said “he was a little windy”.

The defendant, testifying in his own behalf, stated: That he had been in the horse and mule business all his life; that he was working at the Leon Williams horse and mule barn in November, 1936, admits purchasing the mule on the night of November 18, 1936, and describes it in a very-similar manner as described by the owner, Wesley DuBuc; that he knew Fred Bert Smith at this time, but had only met him a short while prior to the 18th day of November, 1936; that one morning about 11 o’clock Fred Bert Smith came to him at Mr. Harper’s cafe, and asked him if he would like to look at a pair of mules; that he was busy ¿trying to sell a load of mules, and did not see him until about two weeks later; that Smith came to him about 4:30 on Wednesday afternoon and wanted him to go and look at a pair of mules; that he was busy and could not go, and asked Smith to bring the mules to the sale barn; that he directed him to George Freeman, who was standing nearby; that he told Freeman that Smith wanted a truck; that he told Smith when he got back if he did not see him to ask about him and they would come after him. He then testified to someone calling him at the Brown Bungalow and of purchasing the mule, just about as testified to by the other witnesses. He denied ever having had any conversation with the witness Fred Bert Smith with reference to handling “hot” or stolen mules, and denies any knowledge of the mule being stolen which he purchased on the night of November 18, 1936. In explanation of the manner of purchase of the mule he stated Mr. Beeland had told him not to write any checks when drinking and that he had been drinking on that night and for this reason he asked Mr. Carson to write the check for the mule. That he had dealt with Mr. Carson before, and had purchased mules which were sold in his name; that his reason for indorsing the check was so they could get the money to pay Mr. Freeman for the use of his truck, and he knew that the check of Frank Carson was good; that he did not receive any part of the proceeds of said check from Fred Bert Smith or any one else; that he sold the mule on the following morning to Mr. Carroll of Memphis, Tenn., for $130; that this deal was made upon the books and it showed the sale by Frank Carson, and the money was paid to the barn.

On cross-examination he testified he had been convicted of a felony, but had not served a term in the penitentiary; that his lawyer had told him the matter had been thrown out of court. He admitted instructing Jess Lambert and Roy Goodwin with reference to going in a truck to get some mules, but stated that the testimony as given by Roy Goodwin was not true. He testified that it was 4:30 in the afternoon when he told George Freeman to go with his truck and not at 10:30 at night.

The state put on several witnesses in rebuttal, but their testimony was of no material difference than as heretofore stated.

From the above statement it will easily be observed that the evidence was conflicting. The contention that the mule was never identified as being the mule of Wesley DuBuc is untenable. The witness Fred Bert Smith positively testified that the mule was the property of Wesley DuBuc; that he had worked for him, and had driven and ridden behind the mule; that it was taken from the pasture where it was kept at the time he knew him. The description of the mule given by Wesley DuBuc compared most favorably with the description given by all the other parties who saw the mule. The only material difference was the weight, and that only varied a little over a hundred pounds. Mr. DuBuc testified positively as to the identification of the hide taken from the mule which died in Memphis, and the defendant testified to selling the mule to Mr. Carroll of that city. Other testimony in the record abundantly sustains the identity of the mule, as being the one owned by Mr. DuBuc. The contention that the witness Fred Bert Smith being an accomplice was not corroborated can in no wise be sustained. Practically every witness testifying for the state and also for the defendant, and the defendant himself, corroborated many statements to which he testified. It is not essential that corroborating evidence shall cover every material point in accomplice’s testimony or be alone sufficient to warrant a conviction. If he is corroborated as to some material fact or facts the jury may infer from that, that he speaks the truth as to all. Langley v. State, 53 Okla. Cr. 401, 12 P.2d 254; Moore v. First National Bank of Iowa City, 30 Okla. 623, 121 P. 626. The fact that certain witnesses swore that the witness Fred Bert Smith’s reputation for truth and veracity in their opinion was not good did not require that his whole evidence be cast aside. It was for the jury to decide after hearing the evidence whether or not they would believe what he said to be true or false. They had the opportunity to see and hear all the witnesses, and it was for them to judge where the truth lay. The cases cited do not bear out the contention made by defendant. They are: Smith v. State, 109 Ga. 479, 35 S. E. 59; Hill v. Montgomery, 184 Ill. 220, 56 N. E. 320; Troxdale v. State, 9 Humph., Tenn., 411; Adams v. Adams, 17 N. J. Eq. 324. A reading of these cases reveals that they are in perfect accord with the doctrine as above announced, and as stated in the Smith Case (page 60):

“It is, of course, always a matter for them to determine whether any witness is really impeached, — that is, completely broken down as to credibility and, until this point is reached, they may or may not believe him, as they see proper.”

Powell v. State, 101 Ga. 919, 29 S. E. 309, 317, 65 Am. St. Rep. 277, as remarked by Mr. Justice Lewis in Huff v. State, 104 Ga. 521, 524, 30 S. E. 808, 809, “the jury have the right to believe the witness who is attacked, rather than the witness brought to impeach him. Hence it does not follow that, while testimony may be submitted for the purpose of impeaching a witness, his testimony is thereby necessarily destroyed.”

The case of Adams v. Adams, cited by defendant, clearly illustrates this proposition. This was a hotly contested divorce suit. It was tried by the court without a jury. The very witnesses whom it was sought to impeach were the ones whose testimony was relied upon by the court to sustain his ruling, yet these witnesses were the type whose character and reputation was bad. In passing, it may be said that the evidence of the witness Fred Bert Smith was corroborated by many witnesses testifying in this case, and in many particulars by the defendant himself. The jury had the right to believe such witness’ testimony, and if they found it had been corroborated to so say by their verdict, which was done in this case. There are many parts of the evidence which not only corroborated the witness Fred Bert Smith, but which connect this defendant with the commission of this crime. The witness Jeff Lambert testified to conversations he had with defendant with reference to the hiring of a truck for the purpose of getting mules in the night time, which was about the same as testified to by the witness Fred Bert Smith. The witness Roy Goodwin testified that he had a conversation with the defendant and he told him exactly where to go and there he would meet a man by the side of the road with the mules. That he went and found the party as defendant told him; that they went nearly to Sallisaw and did not see the party and returned without them. This is exactly as testified to by Fred Bert Smith when he said he could not catch the mule that night. The witness George Freeman corroborated the witness when he testified to going with the truck to get the mule on the night of November 18, 1936, and when he was directed by the defendant where to go, and what to do. The appearance of the defendant at the sales barn, late at night, just as testified to by the witness, and the irregular manner of the purchase of the mule, and the sale not being placed upon the books. The fact that defendant made an attempt to sell the mule on the very same night it was purchased and did dispose of it early the next morning. His indorsement of the check. His admission of meeting the witnesses at the very times he testified, but attempting to change the conversation had between them. The fact that he did not give a draft on the Williams barn as he had authority and it was his custom to do. The conflict between his testimony and that of the other witnesses. His statements to the officers at the time of his arrest in comparison with his evidence at the trial. All of these matters were for the consideration of the jury, and under the law it is not for this court to say they came to the wrong conclusion.

Defendant’s contention that it was error for the court to permit the county attorney at the close of the case to amend the information by inserting the name “Wesley Du-Buc” instead of “Dave DuBuc” cannot be sustained. Section 2888, Okla. Stats. 1931 (Okla. St. Ann., tit. 22, sec. 406), provides:

“When an offense involves the commission of, or an attempt to commit a private injury, and is described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured, or intended to be injured, is not material.”

The following cases, in construing this section, have held that the name of the owner is not a material matter, and one of which a defendant may complain: Ponoksy v. State, 8 Okla. Cr. 116, 126 P. 451; Marshall Dickson v. State, 28 Okla. Cr. 378, 231 P. 315. It is also provided by section 2830, Okla. Stats. 1931 (Okla. St. Ann., tit. 22, sec. 304), as follows:

“An information may be amended in matter of substance or form at any time before the defendant pleads, without leave, and may be amended after plea on order of the court where the same can be done without material prejudice to the right of the defendant; no amendment shall cause any delay of the trial, unless for good cause shown by affidavit.”

Under this statute, it has been held many times by this court, that the permitting of the amendment of an information is not error where the amendment can be made without material injury to the defendant, and nothing is shown by the record that there was any material injury to the defendant by the amendment allowed by the court. Anthony v. State, 55 Okla. Cr. 260, 28 P.2d 1115; Chandler v. State, 3 Okla. Cr. 254, 105 P. 375, 107 P. 735; Arms v. State, 49 Okla. Cr. 34, 292 P. 76, and cases cited therein; Potter v. State, 47 Okla. Cr. 254, 288 P. 362; Warren v. State, 61 Okla. Cr. 333, 68 P.2d 434; 7 A.L.R. 1525, and cases cited from many states; also 68 A.L.R. 929; Peebles v. State, 55 Miss. 434.

We have examined the record and the authorities cited with reference to the contention that the court erred in permitting the introduction of incompetent, irrelevant and immaterial evidence, and from such examination cannot sustain this contention. If any of this testimony was incompetent the evidence of defendant was sufficient to correct the error.

We appreciate the manner in which this case has been briefed. The defendant presented a defense to the jury which if they had believed it would have been their duty to acquit him, but they saw fit to believe otherwise, and convict him. Finding no substantial error in the record, it becomes our duty to affirm the judgment of the district court of Sequoyah county, and it is so ordered.

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


text:
    CARL HARRIS v. STATE.

      No. A—9471.

      June 24, 1938.
    (81 P. 2d 330.)

      Edwin L. O’Neil, of Bartlesville, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error, Carl Harris, was convicted in the district court of Washington county upon an information charging that in said county on the 4th day of December, 1936, he did take, steal and carry away one 1930 Model A Ford roadster, the personal property of Claude Oneal, and in accordance with the verdict of the jury was sentenced to confinement in the state penitentiary for the term of five years and to pay the costs.

From the judgment rendered on the verdict an appeal was taken by filing in this court on March 15, 1938, a petition in error with case-made.

The errors assigned questioned the sufficiency of the evidence to support the verdict.

No brief has been filed and no appearance for oral argument made.

Where the defendant appeals from a judgment of conviction and no brief in support of the petition in error is filed, and no appearance for oral argument made, this court will examine the record for jurisdictional errors, and will read the evidence to ascertain if it reasonably supports the verdict, and, if no fundamental error is apparent, the judgment of conviction will be affirmed.

We have examined the information, the instructions of the court, to which no objection was made or exception taken, and have discovered no error which will warrant a reversal of the judgment. We find the undisputed evidence abundantly supports the verdict and judgment of conviction.

From the record before us our conclusion is that the appeal is without merit. The judgment of the district court of Washington county is therefore affirmed.

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