author: B'ESSEY, J.

text:
    EDDIE L. SHOUQUETTE v. STATE.
    No. A-4097.
    Opinion Filed Nov. 3, 1923.
    (219 Pac. 727.)
    (Syllabus.)
    1. Criminal Law — Fact that Accused Entrapped by Officers no Defense Except Where Officer Proposed Crime and Was Chief Moving Actor — Aiding Offender Liable Only upon Participation in Eve.ry Ingredient of Crime. Ordinarily, it is not against public policy for private detectives and officers to set a trap for one suspected of planning the commission of a crime, and, if he commits the crime, even though aided or encouraged by the officers or detectives who laid the trap, the fact that he was so entrapped will be no defense.
    (a) This rule will not apply, however, where a detective proposes a robbery, and is the chief moving actor in the forcible taking of the property. To hold the aiding offender criminally responsible, he must have participated in every ingredient of the offense charged.
    2. Same — Necessity for Instructions Covering Issue as to Whether One Acting with Procurer of Crime Liable. Where one acts as a detective to entrap' others in the commission of a contemplated robbery; and where he urges and induces others to join with him, and the detective himself proposes and plans the robbery, and is the chief actor in the forcible taking of the property, which would not have been taken without such inducements, to make one so induced to participate with' him criminally ressponsible, the person so aiding such principal actor must have participated in every ingredient of the offense charged, making as to him a complete offense, independent of the acts of the procuring detective.
    (a) Under such circumstances the person appearing to ■ act in concert with the detective is actuated by a different motive, and is not, strictly speaking, an accomplice of the procurer, and, not being an accomplice, he would not be a principal, unless his acts alone include all the elements of the crime charged.
    (b) Where such an issue of fact isl raised by the evidence an appropriate instruction as to the law governing that issue should be given.
    3. Robbery — Taking Property with Consent of Owner to Entrap not "Robbery.” Where property is taken with the consent of the owner, such taking does not constitute robbery, although the object of the taking is to entrap the perpetrator, who has no knowledge of such consent, but really intends to commit the crime.
    4. Criminal Law — Nonliability of One Participating in Crime at Instigation of Detective. Where a private detective, in conjunction with officers of the court, acts as a decoy, and is himself the" chief instigator of and performs the major part of the offense, such scheme will be deemed to be against public poilcy, constituting a good defense against the conviction of any who were induced to participate, and who would not have partici- ’ pated without such inducements.
    Appeal from District Court, Tulsa County; Redmond S. Cole, Judge.
    Eddie L. Shouquette was convicted of bank robbery, and he appeals.
    Reversed and remanded.
    Springer & Wilson, for plaintiff in error.

      Geo. F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   B'ESSEY, J.

Eddie L. Shonqnette, plaintiff in error, here designated the defendant, was on February 5, 1921, informed against jointly with John E. Bradshaw, A. B. Christman, Frank Stanley and others for the robbery of the Sperry Guaranty Bank. After severance this defendant was tried and found guilty, with his punishment assessed at confinement in the penitentiary for a term of 15 years. From this judgment he appeals.

The record shows that the actors connected with this case were implicated in plots, duplicity, intrigue, and the application of the double cross, surpassing the fiction of a Diamond Dick novel. The actors were bankers, detectives, crooks, ex-convicts, robbers and women of the underworld, whose schemes were planned and developed at a disreputable road house, a gambling den, a cache for the storage of firearms, and an illicit whisky still near Tulsa.

The evidence shows that James S. Saunders, an ex-convict and all-around crook was employed during December, 1920, by Eugene P. Gum, secretary-manager of the Oklahoma Bankers’ Association, to co-operate with any bank robbers known to him or with whom he might thereafter become acquainted, and, if necessary, to aid, abet, and participate in any bank robbery that to him might seem advisable, for the purpose of decoying and apprehending any such bank robbers as might co-operate with him.

The Sperry Guaranty. Bank in Tulsa county was a member of the Oklahoma Bankers’ Association, and entitled to its services in all matters connected with such association’s purposes, among which was “general mutual protection and business co-operation among the member banks.”

Pursuant to his arrangement with the association, Saunders had one or more conferences with Eugene P. Gum, H. 0. Brown, manager of the Burns’ Detective Association, and Newt Graham, another member of the bankers’ association, and the chief of police of Tulsa, in room No. 508, Exchange National Bank Building. He here informed these gentlemen that'his associates contemplated robbing some bank, probably the Sperry bank. Saunders was advised to go ahead and cooperate with the others and, if necessary, to participate in this or any other robbery they might suggest. In order that these men might know that any bank robbery so perpetrated was participated in by Saunders and his associates, the leaden ball from a rifle cartridge was extracted and the powder removed, and a note written on a small piece of paper Inserted therein, as follows:

“Dec. 28, 1921.
“The boys request that you keep this bit of evidence for your wise Burns’ detectives. Don’t show it to any one until he comes, as he thinks he is so d-wise.”

Saunders was to leave the cartridge containing this note in the bank where he and his companions did the robbing, thus showing that Saunders was one of the participants.

On the afternoon of the 28th of December, 1920, the Sperry bank was robbed by Saunders and four other armed men, who fled from the scene of the robbery to a still in the Osage hills, where the loot was distributed among them, and certain women there awaiting their arrival. After the robbery the cartridge containing the note, as previously arranged, was found in the bank. In the consummation of the robbery, Saunders was the only man who went behind the grill, where he went to the cashier’s drawer and desk, and placed all the money in sight in a sack, which he carried out to a waiting automobile in which he and his companions drove away. Saunders kept the sack of money between his feet until they arrived at the still. There he divided the loot equally among them, and demonstrated that he was a “good fellow” by giving the ladies there present certain gold coin souvenirs and other money.

Pursuant to agreement, Saunders reported to his employers, Gum and others, and delivered to them the remaining part of his share of the money so taken, after deducting his expenses and disbursements incident to the enterprise, presumably including the cost of some corn whisky, Jamaica ginger, and the value of the gold and currency presented to the “ladies.”

The defendant in this case says: First, that he was not present and did not participate in the robbery — that he was a victim of circumstances, and was convicted largely on the uncorroborated testimony of an accomplice; second, that the robbery, if it was a robbery, was committed with the knowledge and consent of the bank, through its authorized agents; and, third, that the robbery was in fact committed by James M. Saunders, a hired stool pigeon, and that the others implicated were neither principals nor accessories to the robbery.

Upon the question of an alibi the jury found the facts against the defendant. The defendant was a young man, 19 years of age, with no particular occupation. When he was 8 years old a playmate accidentally put out one of his eyes. At the time of the robbery he was assisting his mother in taking care of a rooming house in Tulsa. The defendant was not positively identified as being present at the bank, except by Saunders, who himself admitted doing the major part of the holdup, and by Mr. Martin, who said defendant was the man who pointed a gun at him, and that he wore smoked glasses, so that witness did not notice the missing eye. There was evidence from others relative to defendant’s subsequent conduct which indicated his participation. This court would not be justified in disturbing the verdict of the jury on the ground of insufficiency of the evidence.

To elucidate the other assignments of error it will be necessary to quote excerpts or a condensed statement of the evidence from this voluminous record, abounding in interesting though sordid details. A condensed story of the decoy Saunders is as follows:

“Before going to Tulsa on December 20, 1920, I had a* conversation with Eugene P. Gum of the bankers ’ association, who employed me as a detective at a salary of $200 per month and expenses; I was supposed to associate myself with such thieves, robbers, and others as I might find who were contemplating or were willing to associate themselves with me in robbing banks; I was not to participate in the robberies unless I had to, but I was instructed that if necessary I was to take part and procure all the evidence possible. On my arrival at Tulsa I went to the Astor Rooms on Second street, where I met Frank Stanley and his wife; I told Stanley that a party had sent me to him, and told me he needed some workers, and that I am ready to go to work. Stanley said his bunch was pretty badly scattered, and that he did need some men, as he contemplated pulling off some big jobs. I remained there all day, and we consumed a considerable quantity of Jamaica ginger, that night we went for a drive and took Christman with us, and we talked about pulling off some small deal to make money for Christmas; I stayed at the Astor Rooms that night. The next morning Stanley, Christman, and I drove over into West Tulsa; we went to the Jacobs Dry Goods store there and looked it over; they said that would be a good place to ‘knock off,’ as they handled a considerable number of railroad checks. I stayed with Stanley at the Astor Rooms that night, where we drank a good deal of com whisky and Jamaica ginger; we again went to the Jacobs store in West Tulsa and waited for the store to close up. Christman went inside the store, and came out and got into the car, and we drove to a restaurant and had lunch. I had a flash light in my pocket, and as I was getting in the car a policeman grabbed the flash light and tried to pull me back out of the car; the policeman thought it was a pistol I had; Stanley was on the inside of the car, and he had an automatic in his hand. We decided it would be dangerous to pull off the store deal that night.
“The next night I went to Oklahoma City, arrived there Christmas morning. There I had another conference with Mr. Gum, and I returned to Tulsa, to the Astor Rooms, that night. On the morning of the 27th Stanley and I went to Sandy McMillan’s road house to meet some of Stanley’s friends; after a while Stanley, Christman, and a boy. they called ‘Country Slim’ went to a power house nearby and got some highpowered rifles, a sawed-off shot gun, and some automatic pistols, and one of them told Sandy we were going to ‘knock off a jug.’ From there we drove in a red-wheeled Hudson out to a still northwest of Sperry, where we met Emma McKenzie and Clark Watson; they were there making whisky, and we purchased some of the whisky, and stayed there about two hours; we then drove on to Sperry, arriving there about 12:30. We stopped in front of the bank of Sperry, and we noticed a Marmon car standing across the street; Stanley wanted us to get out and ‘make it.’ We got out and tried the front door of the bank, but it was locked for the noon hour. We then drove back to the still, and from there back to McMillan’s road house, where we deposited the artillery in the power house from where it was taken; Christman drove with Stanley and me to the end of the ear line, and Stanley and I returned to our rooms.
“I next had a conference with the chief of police of Tulsa, Mr. Gustafson, in room 508, Exchange National Bank Building, in the presence of Mr. Graham, connected with that bank, and also a member.of the Oklahoma Bankers’ Association, and in the presence of Mr. Brown, a member of the Burns’ Detective Agency for Oklahoma. I told them we contemplated robbing the Sperry bank the next day, and one of the men there, possibly Mr. Brown, pulled the bullet out of a Savage rifle cartridge and poured the powder out of it, and put a note in the cartridge shell. Whatever place we robbed I was to leave this cartridge with this note in it, so they would know it was our bunch that did the job.
"The next morning, December 28th, Stanley and I again went out to the McMillan road house, where we met Christ-man ; Christman then drove into town, and brought out Eddie Shouquette; we talked about robbing the Sperry Bank in the presence of Sandy McMillan. After having a few drinks of whisky, and watching the gambling games for a while, we got the Hudson speedster from the garage there, put the guns and pistols we had the day before into the car,- and Shouquette, Stanley, Christman, Clemens, and I drove from the road' house at about 10:30 over to Emma McKenzie’s still, arriving there about noon. We told Watson and Emma McKenzie that we were fixing to knock off the Sperry bank, and-that we wanted to come back there after we had robbed the bank to split the money. Emma agreed to this, and gave us a pillow case off of a pillow to put the money in. We left the Hudson car at the still, and drove Watson’s Ford car, removing the gage and putting on the curtains, and transferred the artillery, and drove this Ford to Sperry. We stopped behind the schoolhouse, and Christman went to the bank to look over the situation. Be came back’ and reported that it looked all right; that the Marmon ear wasn’t there. We then drove up to the bank. Shouquette went in first, then Stanley, and I followed with the sack. Clemens sat in the back seat of the ear with a high-powered rifle, and Christman sat at the wheel, with the engine running.’ Stanley and Shouquette, with drawn pistols, ordered the customers in the bank to hold up their hands, and I went back of the grill where the money was and put it in the sack. One of the customers grabbed at Shouquette’s pistol, and tried to knock it out of his hand; Stanley hit him over the head with his six-shooter, accidentally discharging it. I took all of the money out of the drawers at the cashier’s window and off his desk, consisting of paper currency, silver, and some gold pieces, something over $1,400 altogether. Nothing was taken out of the vault. In passing by I looked into the safe, and went right on out the front door, got in the car with the rest of the bunch, and drove away, returning by a circuitous route to Emma McKenzie’s still. There we went some distance from the house, and each party sat down with his hat in front of him; I then distributed the bills, first from a roll of twenties, placing one in each hat as long as they lasted; and then so on with the currency of different denominations. The silver was then distributed in the same way, until we got to the small packages; these we gave to the women. Some of it we gave to Christ-man’s wife, and $100 to Emma McKenzie. The twenty dollar gold piece I found in my pocket, and I gave it to Emma Bradshaw; Emma McKenzie found a five dollar gold piece, and she had it made into a ring, and sent it to her husband in the penitentiary.
“Christman and I stayed there around the still until after night; Emma McKenzie took Jerome Clemens to Skiatook, and as soon as she returned she drove with Stanley and Shou-quette to the end of the Tulsa car line; Christman and I drove in with the Hudson speedster, bringing the firearms with us; these we put back in the power house at Sandy McMillan’s. I stayed at Sandy’s a part of that night. The next morning Jerome Clemens and Christman were there. Christman gave Sandy $50, and I gave him $50; I suppose that was for the use of the guns. Christman also paid him $60 that he owed him. JAbout 12 o’clock of the night of the robbery I turned over to Graham, Brown, and the chief of police, at 508 Exchange National Bank Building, my part of the money taken in the robbery, all that was left, amounting to about $150. I had paid out a considerable part of it for whisky and other things, and I had left $50 in small change silver coins in a glove hidden out at the stillhouse, but when we went back to get it it could not be found.”

Elsewhere in the record it is shown that Shouquette was subsequently arrested in Oklahoma City, in front of the Saunders house, and Christman was arrested about the same time in the home of Saunders, 715 East Fourth street. Stanley was later arrested at Claremore.

The record shows the authority given Saunders by Brown, Graham, and Gum of the Bankers’ Association, as follows:

From the testimony of Eugene P. Gum:

“Q. What instruction did you give him with reference to his work here in Tulsa? A. Well, I instructed him to secure all the information he could with reference to certain parties who were alleged to have been organized against the banks in Oklahoma.
“Q. Did you tell him to go and help rob any banks or anything of that nature? A. No, sir.
“Q. You did not. Did you tell him to get all the evidence he could? A. Yes, sir.
“Q. To identify the parties? A. Yes.
“Q. If necessary, to get with them? A. Yes, sir.
“Q. Is the Guaranty State Bank of Sperry a member of the Oklahoma Bankers’ Association? A. Yes, sir.
“Q. Your association has authority, does it to employ men to work for the banks for the purpose of detecting people who are committing crimes against the banks? A. Yes, sir.
“Q. At the time Saunders was employed you were acting for and on behalf of the association in his employment, were you? A. Yes, sir.
“Q. At the time Saunders was employed you were acting for the association of which this Guaranty State Bank at Sperry is a member? A. Yes, sir.
“Q. You had authority to employ him to do anything you wanted him to do? A. Yes, sir.
“Q. On! behalf* of the Oklahoma association? A. Yes, sir.
“Q. And in your employment of him to do what he did do you were acting for the Oklahoma association? A. Yes, sir.
“Q. Now, what instructions did you give Saunders at that time? A. I told him not to participate in it unless he had to, and not with reference to any particular bank, for we didn’t know.
“Q. But if he had to participate in it, to participate? A. Yes, sir; and give us the information.”

From the testimony of Mr. Graham, Tulsa banker:

“Q. Now it was agreed, was it, that he (Saunders) was to go along with certain robbers to assist in robbing that bank, if necessary? A. Well, it wasn’t agreed that he would go along and rob that bank. I thought it was going to be the First National Bank of Broken Bow.
“Q. I was asking you about this one. A. He agreed to stay with them under instructions.
“Q. To do what? A. To stay with the gang.
“Q. And to be a part of them? A. Not necessarily,
“Q. To collect evidence? A. If possible to get out of the actual robbery.
“Q. But if necessary, to go in and participate? A. Yes, I think so. They didn’t give him those instructions then, but I think he had those instructions. * * *
“Q. Now, Mr. Graham, you knew that there was no felonious intent upon the part 9f this man Saunders to steal and keep any of that money himself, didn’t you, from the arrangement ■ that they made with the officers? A. Well, I didn’t think he was going to keep any of it.
“Q. And he did bring back and surrender to you and Mr. Gustafson the money he got as his part? A. Yes, to Mr. Gustafson in my presence.
££Q. And he was keeping you informed all the time as to the maneuvers of the different parties whom he expected to rob the Sperry bank? A. We wasn’t very sure it was going to be the Sperry Bank, we thought it would be within 18 miles of Tulsa.
“Q. You thought it enough to notify Mr. Winters? A. Yes, after they attempted it on the 27th I knew they had attempted that and I tried to get him.”

From the testimony of Mr. Brown, Burns’ detective:

“Q. Are you acquainted with Mr. Gustafson, the chief of police of this city? A. Yes, sir.
££Q. Did you see him there that night (508 Exchange National Bank) ? A. Yes, sir.
££Q. Are you acquainted with Newt Graham? A. Yes, sir.
i£Q. Did you see him there that night? A. Yes, sir.
££Q. Was Mr. Saunders there? A. Yes, sir.
££Q. I will ask you to state, Mr. Brown, if during the discussion of' that evening at that time and place you prepared a cartridge? A. Yes, sir.
££Q. Háve you seen the cartridge that has been exhibited here?. A. Yes, sir.
££Q. And the note that was placed in it? A. Yes, sir.
££Q. Was that prepared there that night in room 508, under your direction? A. Yes, sir.
££Q. Handing the witness State’s Exhibit B, Mr. Brown, I will ask you to look at that notation on there, and ask you to state who put that notation on there? A. Mr. Newt Graham’s signature is on there, and Mr. Jacobs’, the second initial; I forget the gentleman’s name, and the fourth one there is my initials.
“Q. What date is it? A. December 28, 1920.
“Q. When did you put that on there? A. Put that on there—
“Q. When was that notation put on there, Mr. Brown? A. The notation here?
“Q. Yes, sir. A. On the evening of the 28th.
“Q. Where did you get that cartridge that day? A. On the counter of the Guaranty State Bank of Sperry.
“Q. Sir? A. On the counter of the Guaranty State Bank of Sperry.
“Q. Mr. Brown, where did you get this cartridge, you say? A. On the counter.
“Q.' Where? A. Of the Guaranty State Bank of Sperry.
“Q. On what date? A. The. afternoon of December 28th. # # *
“Q. Now, did you tell him (Saunders) to cooperate with them as one of the gang so that he might deceive them and they believe he was one of them? A. Do any part that came to hand? His instruction was to get the information as to when and where the bank was to be robbed, and stay out of it if possible, but if the situation came up in such a way that he was forced to go with them without uncovering himself, to go ahead on the job.
“Q. And to participate in it? A. Yes, sir.
“Q. That was the instruction given to him by you as al deputy sheriff and1 an officer of the Oklahoma State Bankers’ Association, and by Gustafson, as an officer? A. I think that was about the instruction.
“Q. That was the instruction given by Mr. Graham? A. I believe so.
“Q. All of you agreed? A. We all agreed.
“Q. Now what was he to do with the part of the money that was to come to him out of the robbery? A. He was to turn it in.
“Q. He was to turn it in? A. Yes, sir.
“Q. And did he do as instructed? A. Yes, sir.”

Saunders claims that his companions were thieves and bank robbers, and that he acted only as an informer and decoy. The defendant claims that the testimony indicates that Saunders was more than a decoy; that he actively planned and was the chief actor in the consummation of the robbery, and that his companions, some of them mere boys, partially under the influence of corn whisky and Jamaica ginger, were by him solicited and induced to aid him in its commission, and that without such inducements from Saunders the crime would not have been committed. That if the defendant Shou-quette and others were present, since Saunders, who actually took, kept, and divided the money obtained from the bank, was not guilty of robbery, his companions were not aiders and abettors of Saunders in the commission of a robbery, for the simple reason that it is conceded that Saunders committed no robbery, and they, not being aiders and abettors of another in a legal sense, could not be principals, unless the offense and every element of it was committed by them, independent of the acts committed by Saunders.

Suppose Saunders, the decoy, had lured Shouquette, the defendant, alone to assist him in taking this money. Under that state of facts Shouquette could not have been an accomplice, because the originator and chief' executor of the affair was not guilty of robbery. Would the rule be any different where more than one was lured into the trap ? If these associates were not accomplices of Saunders, could they be accomplices of one another, so as to make each a principal within the meaning of our statute making all persons who aid or participate in the commission of an offense principals and punishable as such? We think not, unless those procured to assist the person who laid the trap did such acts, independent of the act of the procurer, as amounted to a larceny committed by them alone. From the evidence in the case upon that issue the jury might have found either way, hence we think the trial court could have submitted an instruction upon that issue of fact. Such an instruction was requested and refused.

Ordinarily, it is not against public policy for officers to set a trap for one suspected of planning the commission of a crime, and, if he commits the crime, even though aided or encouraged by the officer who laid the trap, the fact that he was so entrapped will be no defense. This rule will not apply, however, where the decoy proposed a robbery, and was the chief moving actor in the forcible taking of the property. To hold the aiding offender criminally responsible, he must have participated in every ingredient of the offense charged. 1 Brill, Enc. Crim. Law, § 187; Woo Wai v. United States, 223 Fed. 412, 137 C. C. A. 604; Roberts v. Territory, 8 Okla. 326, 57 Pac. 840; People v. McCord, 76 Mich. 200, 42 N. W. 1106; United States v. Echols (D. C.) 253 Fed. 862; Brill, supra, § 188; State v. Currie, 13 N. D. 655, 102 N. W. 875, 69 L. R. A. 405, 112 Am. St. Rep. 687.

The facts in the Woo Wai Case, supra, are as follows:

“In October, 1908, Fernando Sanford, a confidential agent of the immigration commission, then in charge of the investigation of offenses in violation of the immigration laws on the Pacific coast, suspected that Woo Wai, a Chinese merchant, who had resided for many years in San Francisco, possessed information in regard to previous unlawful importations of Chinese women into San Francisco, and the complicity therein of certain officers of the immigration commission. He conceived the scheme of obtaining a hold on Woo Wai, in order to make him tell what he knew, by luring him into the commission of an offense against the laws of the United States, by bringing Chinese across the Mexican border into California, for which he was thereafter to be indicted and convicted, all for the purpose of bringing pressure * * * upon him to make him ‘come through.’
“To carry out this scheme, Sanford, at the expense of the United States, employed a detective. The detective, whose name was Roy, approached Woo Wai, and suggested to him that he knew a scheme by which they could make, money. Without disclosing the nature of the scheme Roy induced Woo Wai to accompany him to San Diego. Both the expenses of Woo Wai and Roy on that journey were paid out of the treasury of the United States. Roy introduced Woo Wai to the local inspectors of immigration at San Diego, Ralph L. Conklin, and Harry H. Weddle. Sanford had informed these inspectors of the nature of the scheme. It is to be said in justice to the inspectors that they entered into the scheme with great reluctance. In their presence and in the presence of Woo Wai, Roy made the proposition that they permit Woo Wai to bring Chinese across the Mexican border, for which they should receive $50 a head. They assented, but Woo Wai said: ‘This is in violation of the law. It could not be done.’ # * *
“During the summer of 1909 Roy was again urging Woo Wai to go to San Diego and enter into the scheme which had been devised, and Conklin wrote him several letters for the same purpose. The inspectors explained to Woo Wai the means by which Chinese could be brought across the border, the routes which they should follow, and the methods by which they could avoid arrest. Conklin went so far as to go to San Francisco to interview Woo Wai. It was not until about April 1, 1910, that Woo Wai finally assented to enter into the scheme which had been so assiduously and persistently urged upon him. He engaged his co-defendants, Wong Chung and Wong Yee, to assist him.”

In reversing the judgment of conviction rendered against Woo Wai for this offense, the court said:

“In the ease at bar there is no evidence that, prior to the time when the detective first approached Woo Wai, any of the defendants had ever been engaged in the unlawful importation of Chinese, or had ever committed or thought of committing any offense against the immigration laws. * * *
“Second. We are of the opinion that it is against public policy to sustain a conviction obtained in the manner which is disclosed by the evidence in this case, taking the testimony of the defendants to be true, and that a sound) public policy can be upheld only by denying the criminality of those who are thus induced to commit acts which infringe the letter of the criminal statutes. -Some of the courts have gone far in sustaining convictions of crimes induced by detectives and by state officers. This is notably so of the de- ■ cisión in People v. Mills, 178 N. Y. 274, 70 N. E. 786, 67 L. R. A. 131. But it is to be said, by way of distinguishing such cases from the case at bar, that * * * the criminal intention to commit the offense had its origin in the mind of the defendant. Thus, in People v. Mills, it was the defendant who made the first suggestion looking toward the commission of the criminal act, and for the commission of that act the district attorney furnished him opportunity, and lent him aid. In the case at bar, the suggestion of the criminal act came from the officers of the government. The whole scheme originated with them. In 0 ’Brien v. State, 6 Tex; App. 665, the court said that a ease is not within the spirit of the Criminal Code where an officer ‘originates the * * * intent, and apparently joins the defendant in the criminal act first suggested by the officer, merely to entrap the defendant.’ In Commonwealth v. Bickings, 12 Pa. Dist. R. 206, it was said: ‘No state, therefore, can safely adopt a policy by which crime is to be artificially propagated. *■ * * This is virtually the case of a detective who, by promising to perpetrate a crime, lures an innocent man to aid and abet him, the object being, not the perpetration of the crime, but the luring of the abettor.’ ”

In the ease of People v. Collins, 53 Cal. 185, it was held:

“Parnell informed the sheriff that Collins had requested him to enter a house in the night-time, and steal therefrom a sum of money which he knew to be concealed there, the money to be divided between them. By advice of the sheriff, Parnell agreed to do so, for the purpose of entrapping Collins, and accordingly entered the house, secured the money, marked it so that it could be identified, and, after delivering it to Collins, gave a signal, when the sheriff arrested Collins with the money in his possession. Held, that, inasmuch as Parnell alone entered the building, and did so without felonious intent, there was no burglary committed, and therefore Collins could not have been privy to a burglary.”

In the ease of State v. Jansen, 22 Kan. 498, Justice Brewer, speaking for the court, said:

“"Where one is charged with crime, the mere fact that one who was present with and apparently assisting him in the commission of the crime was simply a detective, constitutes no defense. While, perhaps nothing that is actually done by the detective may be imputable to him, as there is no community of purpose, yet if he with a criminal intent personally does every act which is essential to the crime charged, his guilt is complete. * * *
“The act of a detective' may, perhaps, not be imputable to the defendant, as there is a want of community of motive. The one has a criminal intent, while the other is seeking the discovery and punishment of crime. But where each of the overt acts going to make up the crime charged, is personally done by the defendant, and with criminal intent, his guilt is complete, no matter what motives may prompt or what acts be done by the party who is with and apparently assisting him. Counsel have cited and commented upon several cases in which detectives figured, and in which the defendants were adjudged guiltless of the crimes charged. But this feature distinguishes them, that some act essential to the crime charged was in fact done by the detective, and not by the defendant, and, this act not being imputable to the defendant, the latter’s guilt was not made out. Intent alone does not make the crime. The intent and the act must combine; and all the elements of the act must exist and be imputable to the defendant.”

The authorities are all agreed that where property is taken by the consent of the owner, such taking does not constitute robbery, although the object of the taking is to entrap the perpetrator, who has no knowledge of such consent, but really intends to commit the crime. The absence of consent is an essential element of the crimes of robbery, larceny, burglary, train-wrecking, and other kindred crimes. Brill, Enc. Crim. Law, vol. 1, § 189; Love v. People, 160 Ill. 508, 43 N. E. 710, 32 L. R. A. 139; State v. Abley, 109 Iowa, 61, 80 N. W. 225, 46 L. R. A. 862, 77 Am. St. Rep. 520; State v. Stickney, 53 Kan. 308, 36 Pac. 714, 43 Am. St. Rep. 284; People v. McCord, 76 Mich. 200, 42 N. W. 1106; State v. Hayes, 105 Mo. 76, 16 S. W. 514, 24 Am. St. Rep. 360; Speiden v. State, 3 Tex. App. 156, 30 Am. Rep. 126.

The facts in the ease of Love v. People, supra, were much like the facts in the case at bar. The story of the Love Case is long and replete with many details, a recitation of which would extend thjs opinion unnecessarily.

It is also well settled that the consent of the owner to the forcible taking of his property must be given by some one having authority to consent to the particular act. State v. Currie, supra; State v. Abley, 109 Iowa, 61, 80 N. W. 225, 46 L. R. A. 862, 77 Am. St. Rep. 520; Love v. People, supra; People v. McCord, supra; notes and annotations, 25 L. R. A. 343; notes 81 and 83, § 189; Brill, supra.

Under the law as stated in the foregoing discussion and the precedents cited, do the facts appearing in evidence show that the persons in charge of the bank consented to the taking of its property by Saunders add his companions? To us it seems a close question of fact, involving an issue of law, that should have been submitted to the jury under proper instructions. The mere fact that the robbery, or pretended robbery, was previously arranged by Gum and others representing the Oklahoma Bankers’ Association, of which the Sperry bank was a member, would not alone by sufficient to imply such consent, but that fact, in connection with other evidence tending to show that the association and its members were co-operatively engaged in employing- procurers and detectives to discover bank robbers and lay traps to catch them, and, if necessary, to actively take part in any and all robberies so planned and executed, might be construed as amounting to the consent of the contributing members. The complex maneuvers, inducements, and tricks employed make a clear deduction as to such consent or want of consent difficult. We believe that under all the circumstances there was enough testimony indicating consent on the part of the Sperry bank to go to- the jury under appropriate instructions.

An instruction of this character was offered, but refused by the court. The instruction offered did not correetly state the law, but it was sufficient to call the court’s attention to the issue of consent or lack of consent, making it the duty of the court to advise the jury as definitely as possible upon that issue. The instructions given did not clearly cover the issue of consent.

Gustafson and Brown were peace officers — officers of the' court — who were in part responsible for this alleged robbery. So frequently it has been demonstrated, and the facts in this case again demonstrate, that the practice of employing one thief to catch another, by participating with him in the commission of the offense, is of doubtful propriety. It is a bad investment, financially. Plans like this to entrap bank robbers are often, as in filis case, executed at the expense of insurance companies that write burglary insurance, and under such circumstances, where a private detective, in conjunction with officers of the court, acts as a decoy and is himself the chief instigator of and performs the major part of the offense, such scheme will be deemed to be against public policy, constituting a good defense against the conviction of any who were induced to participate, and who would not have participated without such inducements. Persons with criminal inclinations may never commit crime where no favorable opportunities are presented, and persons of that character should not be encouraged in the commission of crime by private detectives or by officers of the law. The evils resulting from such practice outweigh the good that may be accomplished. Love v. People, supra.

The companions of Saunders may have been guilty of an attempt to rob, or of the larceny of the money taken by each of them at the time it was divided at the still, but without apt instructions upon the issue as to their performance of every ingredient act constituting the offense, and for the other reasons stated, the conviction for robbery should be set aside. It is therefore so ordered, and the cause remanded for further proceedings not inconsistent with this decision.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    JOHN NIXON v. STATE.
    No. A-4113.
    Opinion Filed Nov. 3, 1923.
    (219 Pac. 1119.)
    Appeal from County Court, Stephens County; G. T. Burrows, Judge.
    John Nixon was convicted of the illegal transportation of intoxicating liquor, and he appeals.
    Affirmed.
    K. C. Drake, for plaintiff in error.

      The Attorney General, for the State.
   PER CURIAM.

On the 30th day of August, 1921, the plaintiff in error was convicted of the illegal transportation of intoxicating liquor, alleged to have occurred on June 17, 1921. By a verdict of a jury his punishment was fixed at confinement in the county jail for a period of 30 days and to pay a fine of $100. Plaintiff in error says the judgment of the trial court should be reversed: (1) Because the jurors were shown to be disqualified; and (2) because the verdict is not supported by sufficient evidence. The record, as we analyze it, does not support either of these claims. The judgment of the trial court is therefore affirmed.


author: BESSEY, J.

text:
    JOHN LITTLE v. STATE.
    No. A-4126.
    Opinion Filed Nov. 5, 1923.
    (219 Pac. 424.)
    (Syllabus.)
    1. Trial — Omission of Addresses on List of State Witnesses not Vital, When. The omission of the post office addresses of certain witnesses for the state, on the list of witnesses for the state served on the defendant, is not vital, where the post office addresses are known to the defendant, and where each of the witnesses had testified; and been cross-examined at the preliminary trial.
    2. Continuance — Denial for Absent Witnesses — Discretion. Alleged error in refusing a continuance examined, and found to be without merit.
    3. Instructions Approved. Instructions relating to presumption of innocence, reasonable doubt, and self-defense examined, and found fair to the defendant.
    Appeal from District Court, Carter County; Thos. W. Champion, Judge.
    John Little was convicted of manslaughter in the first degree and he appeals.
    Affirmed.

      Mathers & Coakley and Thomas Norman, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

Plaintiff in error, John Little, here designated the defendant, was by information filed in the district court of Carter county, December 3, 1920, charged with the murder of Frank Jones, committed on the 27th day of October, 1920. At the trial, May 10, 1921, by a verdict of the jury he was found guilty of manslaughter in the first degree, with his punishment assessed at confinement in the penitentiary for a term of seven and one-half years. After the overruling of a motion for a new trial, judgment in accordance with the verdict was rendered, from which defendant appeals.

The evidence discloses that Frank Jones, the person who lost his life in this tragedy, was standing near the edge of the sidewalk in Healdton, engaged in a conversation, when the defendant approached. The witnesses on the part of the state testified that, as the defendant approached the deceased, the former drew his gun, and commenced firing at him; that Jones took hold of one of the men with whom he had been conversing, and tried to hold him between himself and the defendant; that this man struggled loose, and that the deceased then left the sidewalk, and passed between two automobiles parked there, and that the defendant continued fifing at deceased as he retreated. There were four or five shots fired in rapid succession, three of which penetrated the body of the deceased, two of these being necessarily fatal, according to the testimony of expert physicians.

There was some testimony on the part of the defense tending to show that near the instant the defendant approached and began firing, the deceased pnt his left hand to his rear left pocket, and dropped something on the sidewalk. The defendant himself testified that when the deceased made this gesture he believed that he was preparing to draw a gun for the purpose of shooting defendant, and that the shots fired by defendant we fired in his necessary self-defense.

The testimony nowhere, indicates that after the firing of the first. shot by the defendant the deceased made any gesture or movement indicating that. he had or intended to use a gun. It appears that the deceased had been an officer, and was in the habit of carrying a gun. As to whether he had a weapon, at this particular time the evidence is conflicting. No weapon was found on the body of the deceased, or near the scene of the tragedy. It seems to have been the theory of the defense that the deceased dropped his weapon, and that some of his friends who were witnesses to the tragedy, possibly his son, picked up the weapon and carried it to his home, where it was found the next day.

The several assignments of error urged by the defendant, vitally affecting the issues, may • be condensed as follows, into three: First,, permitting certain witnesses to testify whose post office addresses were not designated on the list of witnesses served upon the■■ defendant; second, overruling of the motion for a continuance; third, alleged erroneous instructions.

The record discloses that the names of four persons, John Bunch, Andrew Jones, Monroe Jones, and Charles Vernon, were indorsed ón the information as witnesses, and that a copy of the same was served upon the defendant, as required by law, but that no post office address for any of these witnesses was indicated. The record further discloses that all of these witnesses were residents of Healdton, and that they had been present, and testified at the preliminary trial, and had been cross-examined by counsel for the defendant. Under the circumstances, this alleged error, or omission to designate the post office addresses, was harmless.

After the beginning of the trial, and after the jury were impaneled and sworn, counsel for the defendant stated to the court that certain witnesses had been duly subpoenaed to appear and testify on behalf of the defendant, and that these witnesses were absent without the consent of the defendant, and asked the court for time in which to prepare a motion for a continuance in proper form. This request was denied, and the attorneys for the defendant were directed to give the names of the absent witnesses to the clerk, indicating that an attachment would be issued for these witnesses, if the defendant so desired; but no request for compulsory process was made by the defendant or his attorneys. Later, a formal motion for a continuance was filed, setting out that three witnesses, W. I. Chron, J. W. McCain, and Ed Huffaker, were absent and were material witnesses for the defendant; that they had been duly served with process; and' that they were absent without the consent or connivance of the defendant. The application stated that J. W. McCain was an eyewitness to the homicide; that he saw the defendant approaching Jones on the sidewalk, and that as he approached Jones reached toward his left side for a pistol which was in his belt, and started to draw it, and that after Jones made this movement Little pulled his gun and started firing; that Little had made no effort to harm Jones until the latter made this demonstration. Nothing was stated in the application as to what the testimony of Chron and Huffaker would be. Nothing was stated as to the whereabouts of either of the witnesses, or whether or not their attendance could be procured later in the event of a continuance.

This court has so often passed upon the question of the right of a defendant to a continuance and the showing necessary to be made as a prerequisite to claiming such right that we deem it useless to reiterate the reasons , set out in former opinions. The trial court, as we hold, did nqt abuse his discretion in overruling the application for a continuance. The testimony of McCain, if true, would have been merely cumulative, and no defense to the offense of manslaughter, as later developed in the evidence and as decided by the jury. The testimony disclosed. that, after the defendant commenced shooting, the deceased retreated, and that the defendant continued shooting until the deceased lay mortally wounded, and helplessly prostrate on the street. If it could be conceded that the defendant had a right, in the first instance, to draw a weapon and begin shooting, the testimony of the. defendant and his witnesses shows that some of the shots fired later, after the deceased retreated were without justification.

The court, on his own motion, gave 28 separate instructions to the jury, defining murder, manslaughter in the first degree, the right of self-defense, burden of proof, and the law of reasonable doubt, covering, as we analyze these instructions, every issue of law and fact developed by the testimony. We think these instructions, separately and as a whole, were fair to the defendant.

The defendant claims that certain instructions were faulty, in that they did not correctly state the law of self-defense; that they did not give a correct definition of the law of manslaughter in the first degree; that the instruction relating to self-defense might be construed to mean that the defendant was required to retreat; and that this and other instructions shifted the burden of proof to the defendant. Ordinarily, jurors are not expert logicians, capable of making fine distinctions in technical legal definitions. It is not necessary to repeat over and over that each material fact must be proved beyond a reasonable 'doubt, or to incorporate in the instructions an extended treatise on the law of self-defense. Where the instructions as a whole fairly state the law, as they did in this case, in language easily understood by persons of ordinary intelligence, mere obscure technical inaccuracies will be waved aside. The purpose of a criminal trial is to determine the guilt or innocence of the person accused, and, if such accused has been denied no substantial right, a judgment of conviction will not be disturbed.

The defendant, under the evidence, may consider himself fortunate that he was not convicted of murder. The judgment of the trial court is affirmed.

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


text:
    FRANK STANLEY v. STATE.
    No. A-4094.
    Opinion Filed Nov. 5, 1923.
    (219 Pac. 734.)
    (Syllabus.)
    1. Criminal Law-Fact that Accused Entrapped by Officers no Defense Except Where Officer Proposed Crime and is Chief Moving Actor — Aiding Offender Liable Only upon Participation in Every Ingredient of Crime. Ordinarily, it is not against public policy for private detectives and officers to set a trap for one suspected of planning the commission of a crime; and if he commits the crime, even though aided or encouraged by the officers or detectives who laid the trap, the fact that he was so entrapped will be no defense.

      (a) This rule will not apply, however, where a detective proposes a robbery, and is himself the chief moving actor in the forcible taking of the property. To hold the aiding offender criminally responsible, he must have participated in every ingredient of the offense charged.
    2. Same — Necessity for Instructions Covering Issue as to Whether One Acting with Procurer of Crime Liable. Where one acts as a detective to entrap others in the commission of a contemplated robbery, and where such defective urges and induces others to join with him, and the detective himself proposes and plans the robbery and is the chief actor in the forcible taking of the property, which would not have been taken but for such inducements, to make one who has been induced to participate with such detective criminally responsible the person so aiding such principal actor must have participated in every ingredient of the offense charged, making as to him a complete offense, independent of the acts of the procuring detective.
    (a) Under such circumstances the person appearing to act in concert with the detective is actuated by a different motive, and is not, strictly speaking, an accomplice of the procurer, and not being an accomplice he would not be a principal unless his acts alone include all the elements of the crime charged.
    (b) Where such an issue of fact is raised by the evidence, an appropriate instruction as to the law governing that issue should be given.
    3. Robbery — Taking Property with Consent' of Owner to Entrap not Robbery. Where property is taken with the consent of the owner, such taking does not constitute robbery, although the object of the taking is to entrap the perpetrator, who has no knowledge of such consent but really intends to commit the crime.
    4. Criminal Law — Nonliability of One Participating in Crime at Instigation of Detective. Where a private detective, in conjunction with officers of the court; acts as a decoy and is himself the chief instigator of and performs the major part of the offense, such scheme will be deemed to be against public policy, constituting a good defense against the conviction of any who were induced to participate and who would not have participated without such inducements.
    Appeal from District Court, Tulsa County; Redmond S. Cole, Judge.

      Frank Stanley was convicted of bank robbery, and be appeals.
    Eeversed and remanded.
    Ed Crossland, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

Frank Stanley, plaintiff in error, here designated the defendant, was on April 6, 1921, convicted of conjoint robbery, with his punishment fixed by a jury at confinement in the state penitentiary for a term of 15 years.

This is a companion case to case No. A-4097, Shouquette v. State, 25 Okla. Cr. 169, 219 Pac. 727, just decided. The trial of this case followed immediately after the trial of the Shouquette Case. The defendants .in the two cases were originally charged jointly with the offense, but on application a severance was granted, and each was tried separately.

The facts as developed in this case were much like those recited in the opinion in the Shouquette Case,, and for the sake of brevity they will not be repeated at length in this opinion. So far as is material to the issues involved, the facts shown in this case differ from those in the Shouquette Case in that there was some positive evidence in this ease that no part of the plans and preparations for robbing the Sperry bank were formulated or executed at Sandy McMillan’s roadhouse, as appeared in the Shouquette Case; that, on the contrary, the arms used in the robbery were brought to Tulsa by the detective Saunders and were not procured at Sandy McMillan’s roadhouse. In this case there was more evidence tending to show that Saunders, the procurer and decoy, planned the alleged robbery, and induced the others who participated to join with him in the forcible taking of the money from the bank, and that without these inducements on his part the robbery of this bank would probably never have occurred. Here, as in the Shouquette Case, it was shown that Saunders, the hired detective, was the chief actor, the man who forcibly took the. money and distributed it among his companions, including the defendant.

As in the Shouquette Case, instructions were requested on these issues, which were by the court refused. The findings of law in this case will therefore be the same as in the Shouquette Case, to which reference is made for a more complete recital of facts, in order to better comprehend and understand the deductions set out in the syllabus hereto.

The judgment of the trial court is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion and the opinion in the Shouquette Case.

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


author: MATSON, P. J.

text:
    C. I. BUCHANAN v. STATE.
    No. A-4087.
    Opinion Filed Nov. 6, 1923.
    (219 Pac. 420.)
    (Syllabus.)
    1. Weapons — Pointing Deadly Weapon — Proof of Intention Vital. In a prosecution, under section 1999, Comp. St. 1921, for pointing a pistol or other deadly weapon at another, the proof must show an intentional pointing of the weapon.
    2. Same — Terms “Point” and “Aim” Defined and Distinguished. The word “point” is not entirely synonymous with the word “aim.” “Aim” denotes direction toward some minute point in an object, while “point” implies direction toward the whole object; but the word “point,” as used in Comp. St. 1921, § 1999, supra, implies intention, and in that respect is similar to the word “aim.”
    3. Same — Evidence Insufficient to Sustain Conviction. For evidence held to show no intentional pointing of a gun at another, see hody of opinion.
    4. Assault and Battery — Right to Use Necessary Force to Prevent Unlawful Interference with One's Property. A person in the lawful possession of real or personal property has the right to use necessary and sufficient force to prevent a trespass or other unlawful interference with such property.
    5. Trial — Right to Affirmative Instruction on Defenses. When requested, the defendant is entitled to an affirmative instruction covering any defense interposed, when there is evidence tending to support such defense.
    Appeal from County Court, Lincoln County; Ira E. Billingslea, Judge.
    C. I. Buebanan was convicted of the crime of pointing a weapon at another, and he appeals.
    Reversed.
    James Embry, for plaintiff in error.
    The Attorney General, for the State.
   MATSON, P. J.

Appeal from the county court of Lincoln county. Conviction for pointing weapon at another, with punishment assessed at fine of $50 and imprisonment in county jail for three months. Among errors assigned are the insufficiency of the evidence to support the verdict and refusal to direct the jury to find defendant not guilty.

This prosecution is based on sections 1999 and 2000, Compiled Statutes 1921, which read as follows:

“It shall be unlawful for any person to point any pistol or any other deadly weapon, whether loaded or not, at any person or persons, either in anger or otherwise.
“Any person violating the provisions of the three preceding sections shall, on conviction, be punished by a fine of not less than fifty dollars, nor more than five hundred, and shall be imprisoned in the county jail for not less than three nor more than twelve months.”

The very essence of the offense defined by section 1999, supra, is the “pointing of a pistol or deadly weapon at another.” If the state failed to prove beyond a reasonable doubt that defendant “pointed” the deadly weapon at another, the prosecution must fail. We find no proof of the material element of the offense in the record of the evidence before us.

The information in substance charged defendant with having on the “29th day of April, 1921, pointed a shotgun at one Noah James.” Noah James on this point testified:

“Q. What happened that day when you went there with Reynolds'? A. Buchanan asked Mr. Reynolds if he made a deal, and Reynolds said, 'Yes,’ he rented it. He said, 'That is all right with me; whatever you and Mr. James does is all right with me.’ Q. What else happened? A. He said it was all right, and then he said — it has been so doggoned long— ‘it is all right, but I have to put this hay away; it looks like rain.’ He threw it off, and I dragged it in the smokehouse, and put it back in the smokehouse for him. When the hay was put away, Mr. Reynolds said, ‘It is getting late; we had better get home.’ Reynolds had to take me home first. I expected to come there that evening and have a talk with Reynolds. He says, ‘That is all right;’ then says he-— Q. Just tell what happened out there. A. He said that was all right, and I said to Mr. Reynolds, ‘We had better go, it is getting late’; and Buchanan spoke up and says, ‘I will just stay here until fall;’ and I said to Mr. Buchanan, ‘I don’t see how you can stay here at all; you have not complied with your contract at all.’ He jumped like this, and shook his hands, and said, ‘I can whip hell out of you.’ I said, ‘I guess you can; I am an old man.’ He said, ‘I can,’ and went into the house and got a single-barreled shotgun and set with it in just about this shape, stepping behind the —Q. And he said what? A. He said, ‘You cannot cuss me like you did Lickliter.’ I said, ‘I did not cuss Lickliter;’ he cussed me, and went on to tell him what he told' me. Q. We do not care about what Lickliter told you? A. That is what he said. Q. What was done then? A. He took his gun and laid it upright in Ms wagon, and he climbed into his wagon. The gun was lying there, the breech of it down, and the muzzle laying in the front of the bed. Q. What did you do? A. The ear followed him out to the gate, right behind him. He took this gun out to the wagón with him, and he went with the gun and flipped the wire out, and Mr. Reynolds drove on ahead of him. I went to the right, and he to the left, and I said to him, in the conversation before we drove out, ‘Will you give me $175 the same as Mr. Reynolds?’ if he wanted to stay, and he said, ‘No,’ he did not ‘want the God damned thing.’ He did not want it, and' he left. That is all of it, gentlemen.”

On cross-examination he testified:

“Q. Did he have the gun in his hand when you told him he was down and out? A. Yes, sir, and had it in this position, holding it in his arm, ready to fire. Q. And you told him he was down and out, right in the face of that gun? A. I was not afraid of him; no, sir. I was not afraid of any of you people; no sir, nor you either. Q. And you were looking right in the end of this gun, when you told him he was down and out? A. I don’t know as I was looking right in the gun; the gun was pointing toward me. ’ ’

J. F. Reynolds, a witness for the state, testified, touching the pointing of the shotgun by defendant, as follows:

“Q. Now, you say that he came out of the house with a gun? A. No; he had the gun in both of his hands, and went and laid it over in the wagon. Q. Did he point it at any one? A. I did not see him. Q. You were watching the gun, and he was there in your immediate presence? A. I did not pay much attention to the gun; I was only watching to see he did not shoot me. Q. You did not think he intended to shoot any one? (Objected to as immaterial, and sustained). A. I think this man did not want to be jumped onto. Q. Could he not have shot him one-half a dozen times, if he had wanted to? A. I suppose so; he went on out of the place ahead of us. Q. That ended the conversation, and you called back to know if he was coming down, and he told you he would. Q. Except his bringing the gun out, and the other man saying he forfeited the contract, there was no further trouble out there? A. Not in particular; no, sir. Q. You did not see him pointing the gun at any one? A. No, sir; I did not see him point the gun at anybody.”

Henry Reynolds, for the state, testified in part:

“Q. Were you oyer at the James place in April of this year, when there was some trouble over there? Tell this jury what happened there. A. There did not much happen, I did not think. Buchanan told us to go and get Mr. James, and whatever deal was made with him was all right. We came back over there, so Mr. James could get Buchanan’s contract, and we could rent the place, and they got into a squabble there. I could not say how it chme up, but Buchanan went in the house and got his gun, and told him, if he was there for trouble, why he could have it. That is all I heard.”

Cross-examination by Jas. A. Embry:

“Q. You did not pay enough attention to tell it or explain it. Did he not talk vilely — I mean, James talk vilely? A. No, sir. Q. To him about renting the place? A. No, sir; I believe he told Buchanan that he had broken his contract some way or another, and so they got into a squabble over it. Q. And said he would have to get out? A. Yes, sir. Q. And you don’t know what Buchanan said to.that? A. No, sir. Q. And James followed Buchanan over to- the smokehouse? A. I don’t remember; I was on one side of the wagon, and they were on the other, and I did not pay any attention to it. Q. Did you ever see Buchanan point a gun at any one there? A. No, sir; I did not. Q. Did you see Buchanan come out of the house and put it in the wagon? A. Yes, sir. Q. And he did not point the gun at any one? A. No-, sir. Q. And after putting the gun into the wagon, he opened the gate and passed out. This is all you saw? A. Yes, sir.”

W. A. James, son of the prosecuting witness, touching the point in controversy, testified as follows:

“Q. I wish you would tell this jury just what happened out there. After you got out there at the place, just tell from beginning to end what happened. A. Well, they talked the matter over there, and it seemed to be all right with the parties, and papa asked him (Mr. Buchanan) when he could give possession, and he said, ‘No; he would not give possession; he would stay there on the place;’- and papa said, ‘No; he could not stay, and the man have the place, too.’ And Mr. James said, ‘Well, you have not complied with your contract either;’ and he jumped out of his wagon, and came over to him, and said, ‘You cannot treat me that way,’ and cussing around, and said, ‘You cannot treat me like that; ’ and he went into the house and got his gun, and, with it in his hands, with an oath, he said, ‘I can use that.’ Qj-.He came out of the house and with an oath he said, ‘I can use this?’ Q. All right; what happened after that? A. Well, Mr. Buchanan went and got into the wagon, and drove on off and out.of the gate, and we all went on home. Q. Assuming your father was just to the right of him and you were near the cellar, which way was the cell¿r from there? A. It was right from me, but left of Mr. Buchanan. Q. I am talking about right and left now? A. I was on the right from Mr. Buchanan. Q. Yes; then your father must have been between you and Buchanan, or nearly so? A. No, sir; anyway, I was north and west from where my father stood. Q. From where you stood could you see how the gun was pointed? A. It was pointed southwest from me. Q. Now, what direction • was that from your father? A. That would be southeast from me. Yes, sir; Papa was southeast of me. Q. And the gun was pointed southwest and you were on over by the cellar? A. Yes, sir. Q. Who was the closest to the gun when he came out with the gun? A. Papa was. Q. And all right then, if he was southwest of the man pointing the gun; which direction were you from either of them? A. Northwest of my father and very nearly west of Buchanan. Q. Then you were looking at the gun from the side? A. Yes, sir; very near.”

For the defendant, Mrs. C. I. Buchanan testified:

“Q. After the conversation there, what did yonr husband and James do? A. They had a little trouble. Mr. James came out there, and he was talking fighting all of the time. He wanted my husband to get off of the place, and said he. would not do it. Q. Tell what all was done there before you went off to get the second load of hay. Did you see a gun there that morning? A. My husband went and picked up his single-barreled shotgun. I said, ‘You had better not hold it that way; it might go off;’ and he picked it up. He laid it down flat in the wagon. I said, ‘You had better not lay it that way; it might go off; the jar of the wagon, you know, might let it go off.’ Q. Where were you when your husband came out of the house? A. I was getting into the wagon. Q. How far were you from your husband? A. About as near as to that receiver there. Q. When he came out, what did he say? A. ‘If you people want to go on the war-path, I am ready,’ is all he said. Q. What did he do? A. He picked up the gun, and picked it up and drove with his right hand. Q. Where did you go? A. He carried the gun in one hand, and drove on through, and the car went on ahead of us. We drove to one side, and let them by before I drove out.”

The defendant testified:

“Q. What else did he say? A. He told me I had forfeited my contract. When he told me that, it made me mad. I told him he could whip Lickliter, but he could not whip me. I went and got my gun. There were four men there to dispossess me, and I did not propose to go against all of them without a gun. Q. What did you do with the gun?. A. Took it out of the house in my hands and put it in the wagon. Q. Did you point that gun at any one? A. No, sir. Q. Did you expect to point that gun at any one? A. I did not. Q. Where was James then? A. My wagon was pointed east, sitting in the south, and laid the gun into the wagon and drove off. I said to the fellows, ‘If you fellows are on the war-path, go to it.’ Q. Did you wait for them to go? A. First I went in front of them, and threw the latch of the gate, and let them go through. Q. What had you started for? A. After a load' of hay.”

The evidence, considered from the standpoint most favorable to the state, does not prove any intentional pointing of the shotgun by defendant at Noah James. At most, the state’s evidence only tends to prove that at one time, while defendant was carrying the shotgun in his arm, on his way from his residence to his wagon, it may have been pointing toward the prosecuting witness, Noah James. This much may only be gleaned from the testimony of James himself.

Neither of the Reynoldses nor W. A. James, the son of the prosecuting witness, all of whom were present at the time it is contended this alleged offense took place, and all of whom were witnesses for the state, testify that defendant at any time pointed the shotgun at Noah James. The testimony of these eyewitnesses supports the testimony of the defendant that he did not so point the shotgun, and leaves the conviction to stand alone on the inference dedueible from Noah James’ testimony that at one time the shotgun may have pointed “toward him” — presumably in the general direction of him.

Seven witnesses testified that the general reputation of Noah James for truth and veracity was bad. True, five other witnesses testified to the contrary; but, eliminating from consideration the question of whether or not Noah James was or was not to be believed (a question solely for the jury), we think that his testimony is not sufficient alone to prove the guilt of this defendant or to support this judgment.

There must have been an intention on the part of defendant to point the gun at another before a conviction should result. While the word “point” is not entirely synonymous with the word “aim,” in that “aim” denotes direction toward some minute point in an object, while “point” implies direction toward the whole object, it is apparent, we think, that the statute was never intended to include inadvertent or unintentional acts of pointing. Livingston v. State, 6 Ga. App. 805, 65 S. E. 812; Coleman v. State (Miss.) 48 South. 181. No intentional pointing of the shotgun is shown by this record, even by the testimony of Noah James, and the testimony of all the other witnesses is to the effect that the defendant at no time pointed the gun at Noah James.

It is undisputed that defendant was at a place where he had a right to be. He had the right to use necessary and sufficient force to prevent a trespass or other unlawful interference with real or personal property in his lawful possession. Section 1762, Comp. Statutes, 1921.

The trial court refused to instruct on that issue. There appears enough evidence to warrant the giving of an instruction along the line requested. Dickinson v. State, 3 Okla. Cr. 151, 104 Pac. 923. We conclude that there is no evidence in this record sufficient in law to sustain this conviction, and, further, that the trial court should have instructed, after such request, on defendant’s right to uke force to prevent a threatened trespass or other unlawful interference with real or personal property in his lawful possession.

■ Conviction reversed.

BESSEY and DOYLE, JJ., concur.


author: DOYLE, J.

text:
    BAILEY v. HOLDEN, County Judge.
    No. A-4909.
    Opinion Filed Nov. 8, 1923.
    (219 Pac. 961.)
    (Syllabus.)
    Appeal and Error — Continuance—Necessary Showing by Defendant of Laches of State in Support of Motion to Dismiss Prosecution. In the absence of a proper record affirmatively showing the contrary, the presumption is that the court had continued the case for a presumably lawful cause. The burden was on the defendant in support of his motion to dismiss, to show that the laches was on the part of the state through its prosecuting officers; otherwise the presumption is that the delay was caused by or with the consent of the defendant himself, and when on bail he must demand a trial or resist the continu- ' anee of the case from term to term. A defendant who has never demanded or been refused trial is not entitled to a discharge under the constitutional provision (article 2, § 20) and the statutory provision (section 2913, Comp. St. 1921).
    Petition for mandamus by E. N. Bailey against Choice D. Holden, County Judge, and N. W. Gross, County Attorney, to compel dismissal of prosecution for the unlawful transportation of intoxicating liquor pending against petitioner.
    Writ denied.
    Warren & Warren, for petitioner.
    N. W. Gore, Asst. Atty. Gen., for respondents.
   DOYLE, J.

The petitioner, E. N. Bailey, on November 9, 1923, filed in this court a petition for mandamus alleging in substance that petitioner, Bailey, and' Van Davis were jointly charged by information filed in the county court of Choctaw county on the 12th day of October, 1921, with transporting intoxicating liquor, to wit, 20 gallons of whisky; that Choice D. Holden is county judge and N. W. Gross is county attorney of Choctaw county; that there have been seven terms of said county court since said information was filed, and no order of any kind was made or entered in said cause until the 5th day of November, 1923, when petitioner filed a motion to dismiss said cause on that ground, which motion was by the court summarily and arbitrarily overruled; that petitioner gave bond at the October, 1921, term of said court, and has ever been ready to answer, defend, and plead in' said cause; that there is no good cause- shown nor does any good cause exist why this cause should have been delayed as it has been delayed, and petitioner has been and is being deprived of the right of a speedy trial and disposition of said cause. Wherefore petitioner prays that mandamus issue to said county judge to dismiss this prosecution, and that N. W. Gross, county attorney, be commanded to desist from further prosecution of this cause. To which petition the Attorney General filed a general demurrer on the ground that the facts alleged do not entitle petitioner to the relief prayed.

Petitioner’s motion to dismiss is based upon the following sections of our Code:

Comp. Stats. 1921, § 2913: “If a defendant, prosecuted for a public offense, whose trial has not been postponed upon his application, is not brought to trial at the next term of court in which the indictment or information is triable after it is filed, the court must order the prosecution to be dismissed, unless good cause to the contrary be shown.”
Comp. Stats. 1921, § 2914: “If the defendant is not prosecuted or tried, as provided in the last two sections, and sufficient reason therefor is shown, the court may order the action to be continued from term to term, and in the meantime may discharge the defendant from custody, on his own undertaking or on the undertaking of bail for his appearance to answer the charge at the time to which the action is continued.”

In Parker v. State, 7 Okla. Cr. 238, 122 Pac. 1116, 124 Pac. 80, it is said, before a prosecution will be dismissed against a defendant because it is not brought to trial within the time prescribed by sections 2913 and 2914, Comp. Stats. 1921, the burden is on the defendant to prove that the trial has not been postponed on his application, and the defendant must prove that he was ready for and demanded a trial and objected to a postponement or a continuance of the cause. If he does not do this, he will be held in law to have waived Ms right to demand a dismissal of the cause under the provisions of the sections above quoted.

In Bowes v. State, 7 Okla. Cr. 316, 126 Pac. 580, it is said:

“In the absence of a proper record affirmatively showing the contrary, the presumption is that the court had continued the case for a presumably lawful cause. The burden was on the defendant, in support of his motion to dismiss, to show that the laches was on the part of the state through its prosecuting officers; otherwise the presumption is that the delay was caused by or with the consent of the defendant Mmself, and when on bail he must demand a trial or resist the continuance of the case from term to term. A defendant who has never demanded or been refused; trial is not entitled to a discharge under the constitutional provision, article 2, § 20, and the statutory provision [section 2913, Comp. Stats. 1921].”

See Eubanks v. Cole, 4 Okla. Cr. 25, 109 Pac. 736.

An examination of the record discloses that petitioner did not demand' a trial or resist the continuance of this cause from term to term. It follows that under the rule stated, the demurrer to the petition should be sustained. The writ of mandamus will be deMed.

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


text:
    GORDON STEWARD et al. v. STATE.
    No. A-4299.
    Opinion Filed Nov. 8, 1923.
    (219 Pac. 960.)
    (Syllabus.)
    Intoxicating Liquors — -Evidence Insufficient to Sustain Conviction of Unlawful Transportation. In a prosecution for transporting intoxicating liquor, the verdict held not warranted nor sustained by the evidence.

      Appeal from County Court, Washita County ; J. L. Jackson, Judge.
    Gordon Steward and another were convicted of unlawfully transporting intoxicating liquor, and they appeal.
    Reversed.
    Renegar, Bailey & Billups, for plaintiff in error.
    George F. Short, Atty. Gen., and Leon S. Hirsh, Asst. Atty. Gen., for the State.
   DOYLE, J.

The plaintiffs in error, Gordon Steward and Perry Powell, were tried and convicted, and each sentenced to be confined in the county jail for 60 days and' to pay a fine of $100 on an information charging that in Wash-ita county, on the 11th day of August, 1921, they did unlawfully transport whisky from some place in the state of Oklahoma unknown to the home of one A. J. Williams, northeast of Colony, in Washita county.

The petition in error; among other assignments, alleges that the verdict is not sustained by the evidence.

The state relied for this conviction upon the testimony of Charley and David Williams and that of their mother, Mrs. A. J. Williams. It appears that defendant Gordon Steward is a son-in-law of Mrs. Williams, and defendant Powell is a brother-in-law of defendant Steward, having married his sister, and that both defendants were living in Caddo county, near the town of Hinton.

Charley Williams testifies:

“A. J. Williams, my father, lives three miles east and three north of Colony. Gordon Steward married my sister. His home is three miles beyond Hinton. I visited Gordon Steward twice during the summer; the first time I stayed four days, and the second time two hours. Perry Powell was there at Gordon’s and we went over to Hinton; from there we went to my father’s in a roadster. Gordon drove the ear, and we arrived home about sundown. I saw just a pint. Gordon had it, I think. All of us had it a part of the time. I could not swear it was whisky. We drank it over in Caddo county. I never did see Gordon have any whisky on the premises, and when I got home I did not see any whisky there. I heard Gordon tell Perry to give the old man a drink. My father did not take a drink.”

David Williams testifies:

“I am 12 years old. Gordon Steward is my brother-in-law. He lives down by Hinton. I did not see Gordon or Perry have any whisky when they came to our place.”

Mrs. A. J. Williams testifies:

“The defendants, with my sons, Jack and Charley, came to our place in a ear. I did not see any whisky that evening. I heard Perry say that he believed he would give the old man a drink; that is all I know with reference to the whis-ky.”

The state rested, and the defendants demurred to the evidence, and moved the court to direct the jury to return a verdict of acquittal, for the reason that the evidence is insufficient to warrant a conviction. The motion was overruled, and exception allowed.

As witnesses in their own behalf defendants each denied having any whisky on the trip or transporting any whisky as charged, and each denied having offered a drink of whis-ky to A. J. Williams. It appears that this was the first time that either was ever charged with violating the prohibitory liquor law.

A careful consideration of the evidence convinces us that it is not sufficient to show the transportation of whisky in Washita county. The only evidence tending to show possession fixes the place in Caddo county. It follows that the state failed' to prove the offense charged, and the defendants’ motion for a directed verdict should have been sustained.

Upon a consideration of all the testimony we are satisfied that the offense charged has not been established by that degree of proof required by law. The judgment of the lower court is therefore reversed.

MATSON, P. J-, and BESSET, J., concur.


text:
    J. F. CONNER v. STATE.
    No. A-4161.
    Opinion Filed Nov. 12, 1923.
    (220 Pac. 73.)
    Appeal from County Court, Major County; Harry Randall, Judge.
    J. F. Conner was convicted of failing and refusing to compel his minor child to attend school, and he appeals.
    Appeal dismissed.
    See, also 24 Okla. Cr. 196, 217 Pac. 226.
    Bishop & Roberts, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is a purported appeal from the county court of Major county, from a judgment rendered on the 5th day of September, 1921, convicting plaintiff in error of the offense of failing and refusing to compel his minor child to attend school as required by law and assessing against him a fine in the sum of $25 and costs of the prosecution.

The petition in error and case-made were not filed in this court until the 5th day of January, 1922, more than 120 days after the rendition of the judgment in the lower court. This being a conviction for a misdemeanor, the longest period of time allowed by statute for perfecting an appeal from the judgment is 120 days after the rendition thereof.

The appeal is therefore dismissed. Boyle v. State, 15 Okla. Cr. 659, 179 Pac. 945, and cases cited therein.


text:
    STATE v. A. C. BUNCH.
    No. A-4175.
    Opinion Filed Nov. 12, 1923.
    (219 Pac. 428.)
    Appeal from District Court, Murray County; W. L. Eag-leton, Judge.
    A. C. Bunch was discharged on a charge of unlawful possession of narcotic drugs, and the State appeals.
    Appeal dismissed.
    R. C. Roland, for defendant in error.
   PER CURIAM.

This is an attempted appeal from a judgment of the district court of Murray county discharging the defendant A. C. Bunch on a charge of unlawful possession of narcotic drugs. A transcript of the record and case-made were filed in this court on January 16, 1922. No petition in error was attached thereto, as required by section 2814, Compiled Statutes 1921. Neither has any brief been filed in behalf of plaintiff in error, although the ease has been submitted for several months.

The appeal is dismissed, for failure to diligently prose-' cute the same by filing petition in error and brief, as required by statute and by the rules of this court.