text:
    THEODORE BRUSTER v. STATE.
    No. A-6707.
    Opinion Filed April 21, 1928.
    (266 Pac. 486.)

      Twine & Twine, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Muskogee county for the crime of murder and his punishment fixed at death.

The information charges that on January 14, 1927, defendant killed one William Heenan by shooting him with a pistol and striking and beating him with'an ax, inflicting wounds from which he died on January 15. The evidence is that defendant is a negro, 20 years of age; that deceased, William Heenan, was a white man, 70 years of age, who conducted a small store and filling station near Muskogee. On the date charged, defendant went to this store; just before he arrived there he had a conversation with Clem Porter, another young negro, who was cutting wood near and told him, in substance, he was going to the store to get something to eat and get the old man’s money. Defendant soon came out of the store building and rode on the wagon driven by one Cooper until near the house of Clem Porter, where he left the wagon, went to the house of Porter, and there had a further conversation with Porter in which he said he had a fight with the old man (referring to deceased), and hit him with an ax, but got the money. Defendant then went across the road to the house of Albert Bynum, and there stated he had shot deceased. Late that afternoon he was arrested and made a full confession of the killing of Heenan in which he said he had thrown away the pistol with which he did the shooting. He then went with some of the officers and recovered the pistol at the place stated. The following day he was taken by the officers to the scene of the killing, and there he pointed out where he stood When he fired the shot and where he obtained the ax with which he struck the deceased. Defendant testified, in substance: That on the day of the homicide he went to the house of Albert Bynum, and he and Bynum decided to make some whisky, and he then went to the store of deceased to get something to eat. That Clem Porter was near the store, and he talked with him. At the store he had some conversation with deceased about buying some canned goods, and deceased got an iron bar and hit him, and he pulled a'pistol out of his coat pocket and shot deceased. That he then went to the house of Bynum and had some conversation with him about the difficulty. He admitted he made the statements testified to by the officers, but did so on account of threats and intimidation by them. ■

Before entering upon the trial defendant filed a motion ' to quash the panel of the petit jury for the reason that no negroes were on it;, that the jury commissioners, in violation of the Constitution and laws of the United States, had excluded all persons from such jury panel on account of their race and color; that Muskogee county has a large colored population composed of many qualified voters, eligible for jury service; that the jury commissioners had will- . fully refused and failed to select any person of African descent to serve on the jury. It has-been frequently held by the Supreme Court of the United States that where a negro is charged with crime and upon oath challenges the panel of the jury upon the ground that the commissioners or the sheriff, who selected the jury by which he is to be tried, has excluded from the jury persons of African descent solely on account of their race and color and such challenge is supported by the evidence, and the court finds as a matter of fact negroes were so intentionally excluded solely on account of their race and color, the motion to quash the panel should be sustained. Neal v. Delaware, 103 U. S. 370, 26 L. Ed. 567; Gibson v. Mississippi, 162 U. S. 565, 16 S. Ct. 904, 40 L. Ed. 1075; Carter v. Texas, 177 U. S. 442, 20 S. Ct. 687, 44 L. Ed. 839. This holding of the Supreme Court of the United States is binding on this court and other, state tribunals. McIntosh v. State, 8 Okla. Cr. 469, 128 P. 735; Smith v. State, 4 Okla. Cr. 328, 111 P. 960, 140 Am. St. Rep. 688; Scott v. State, 29 Okla. Cr. 324, 233 P. 776.

Officers charged with the duty of selecting and summoning jurors can exercise their discretion in selecting those persons who in their judgment are competent and qualified to serve as jurors, but they are not permitted to exclude competent persons who are of African descent solely on account of their race and color. Franklin v. South Carolina, 218 U. S. 161, 30 S. Ct. 640, 54 L. Ed. 980; Thomas v. Texas, 212 U. S. 278, 29 S. Ct. 393, 53 L. Ed. 512; Id. (Tex. Cr. App.) 95 S. W. 1069.

The trial court permitted defendant to present evidence in support of his motion to quash. He thereupon called the three jury commissioners as witnesses. Each testified, in substance, there were a good many colored people in that county, taxpayers and qualified voters, but in selecting the jury they selected those persons they knew and considered qualified; that they made no exclusion of any one on account of race or color. Defendant then called several witnesses who testified they were residents, taxpayers, and voters of Muskogee county, had 'been for several years, and had never been selected for service on the jury. It does not appear that any of these witnesses were persons of African descent. It is not shown, approximately or otherwise, what per cent, of the resident taxpayers of Muskogee county are of African descent. Such facts are not a matter of which we have any judicial knowledge. The evidence is wholly insufficient to show that negroes •were intentionally excluded from the panel solely upon the ground of their race and color.

It is next argued that the court should have required the state to elect on which part of the information it would stand. The information charges the homicide to have been committed by shooting with a pistol and by striking with an ax. Defendant insists that the court should have limited the proof to either one or the other of the means alleged. This contention is wholly untenable. Section 2558, Comp. St. 1921, provides:

“* * * And where the offense may be committed by the use of different means, the means may_be alleged in the alternative in the same count.”

The evidence discloses that the death of deceased was caused by shooting with a pistol and by a blow on the head from an ax. It was proper to charge the crime to have been committed by means of each of the weapons named, and, under the charge, proof might be made of the death by either or both of such means alleged. It would have been error to have required the state to elect. In the case of Kearns v. State, 14 Okla. Cr. 142, 168 P. 242, it was held:

“An information charging murder which alleges that the means used in producing death was a slung-shot or other blunt instrument, the accurate description of which is unknown to the county attorney, and an axe, is not subject to demurrer on the ground that it is duplicitous, for the reason that both such instruments could be used in the perpetration of the crime. The proof in the record under review establishes the fact that such was the condition under which the homicide involved occurred.”

It is also argued that the court admitted incompetent evidence prejudicial to the rights of defendant. This is directed to the admission of a confession made by defendant which it is insisted was procured by threats and duress. The witnesses for the state, to whom the confession was made, testify that it was voluntarily made without any intimidation and after defendant had 'been warned that any statement made might be used against him. The court in his charge instructed the jury that such statements could be considered only in case they were freely and voluntarily made, and, if any inducements were held out or threats oifered to secure such statements, they should not be considered. This instruction stated the rule as favorable to defendant as the law warrants.

Complaint is next made that the assistant county attorney in his argument to the jury used language calculated to inflame the jury and to create a prejudice against defendant. This assignment is not borne out by the record. The argument of the assistant county attorney was not preserved, no objections or exceptions were taken, and no bill of exception containing any of the claimed statements appears in the record. It is well settled that, where error is predicated on the ground of alleged misconduct of counsel for the state in the argument to the jury, the attention of the court should be called to the matter by proper objection, a ruling had thereon, and exceptions taken. The objectionable language must be preserved either by transcript of the proceedings or by bill of exceptions. Where this is not done, the' matter is not properly presented to this court. Cook v. State, 36 Okla. Cr. 285, 253 P. 1029; Howard v. State, 39 Okla. Cr. 336, 265 P. 149, and cases cited.

The record conclusively shows the murder of the deceased in order to rob him of a few dollars. We see no reason to mitigate the penalty of death as fixed by the jury.

The case is affirmed.

Since the original time fixed for the execution has expired owing to the pendency of this appeal, it is ordered that the judgment and sentence of the district court of Muskogee county be carried into execution on Friday, June 29, 1928. The warden of the penitentiary at McAlester is ordered and directed to cause the sentence to be executed according to law.

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


source: Caselaw Access Project

author: DOYLE, P. J.

license: Public Domain

text:
    STEVE GUINN v. STATE.
    No. A-6257.
    Opinion Filed April 23, 1928.
    (266 Pac. 484.)
    E. E. Ammons, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error, herein referred to as defendant, was convicted of manslaughter in the first degree on an information filed in the district court of McIntosh county, wherein it was charged that he (Steve Guinn), in said county on the 16th day of October, 1925, did kill and murder one Garfield Youngblood by shooting him with a pistol. Motion for new trial was duly filed and overruled and in accordance with the verdict of the jury the court rendered judgment and. sentenced defendant to imprisonment in the penitentiary for a term of four years. From the judgment he appeals.

Neither in the petition in érror nor in the brief filed is any complaint made of the instructions given or of any ruling of the court in the admission or rejection of testimony. The only ground urged for a reversal is that the verdict is not sustained by sufficient evidence, and that it is contrary to law.

It appears that defendant, Steve Guinn, resided on a farm about 7 miles west of Checotah. The deceased, Garfield Youngblood, together with others who were working with him, was engaged in. picking cotton in that neighborhood. Defendant had about 40 acres of cotton and the deceased agreed to have his picking force pick defendant’s cotton, provided defendant would give a dance for the party. This defendant agreed to do, and it was at this dance that the killing occurred.

The deceased went to the dance armed, as did also his son, Otis Youngblood. While the party was in progress, a pistol fell from the clothes of Otis Youngblood. Defendant picked up the pistol and refused to return it to Young-blood. This was the beginning of a series of difficulties between defendant and the deceased, which culminated in the shooting of Garfield Youngblood by defendant, while he was seated in his Ford car in the act of leaving the defendant’s premises, about 10 o’clock at night. The bullet entered the left side of his head, near the ear, and came out on the right side of his head. The body of the deceased remained in the car until the sheriff arrived.

A. F. Downs testified that he and his daughter, Carrie, were working for the defendant at that time; that a sixshooter fell on the floor, and defendant picked it up, put it in his belt, and had a dispute with Otis Youngblood, and then defendant and the deceased had a fight; that defendant had a gun, a big 45, and the deceased had a gun; that, assisted by others, he separated the parties; that shortly afterwards another fight started and the deceased hit defendant with his fist in the mouth; defendant then went out the front door, the deceased went and got in his car ; then he saw defendant walk towards the corner of the porch and in the light of the window he saw the defendant holding a six-shooter and the gun fired; that witness walked out to the ear, and the blood was dropping from, the head* of the deceased on the running board; that shortly after-wards defendant came out to the car with his gun in his . hand, and said, “Is the man dead; who shot him? sWw me the son of a bitch that shot the man;” then defendant went back to the house and witness went back; defendant gave witness his gun; it had two shells in it and four cartridges, and witness took the shells and loads from the gun; that two or three other persons were present at the time.

E. A. Kelly, sheriff, testified that he was called to defendant’s house to investigate a killing and found a Ford car in front of the porch with a dead man on the seat behind the steering wheel; he had a gunshot wound in front of the left ear, the bullet coming out behind the right ear; that he did not find any guns or weapons of any kind about the body or in the car; that he asked defendant whether or not he fired the shot that killed this man, and defendant said that he did not; that some fellow had knocked him down near the porch and he was there on his hands and knees when the shot fired; that later after his arrest he talked to defendant at the jail and he denied firing the shot that killed Garfield Youngblood.

Carrie Downs testified that she was standing in the door and saw defendant fire two shots and the second shot killed Garfield Youngblood.

For the defense, Mrs. Steve Guinn, wife of defendant, testified that the deceased came into the room while she was changing her clothes and put his arms around her neck, and she said, “Gar, get out of here and do it now,” but she didn’t tell her husband anything about this; that the deceased had two guns and she tried to get him to put the guns up, and he said he.would not give them up; that during the dance Otis Youngblood dropped a gun and her husband picked the gun up, and said, “I am the man of the house, and this boy has danced with a loaded six-shooter, and it could have went off when it hit the floorand Otis said, “I am a fighting son of a bitch; give me my gun;” and her husband pushed him back; that the deceased was playing for the dance at the time, and he stopped and started after her husband with his pistol, and she ran between them; then her husband reached over the window and got his gun and the deceased wrenched it from him, threw it to his son, then hit her husband in the mouth, and her husband ran out the door and hollered for his gun, and she threw his gun out in the yard; then two shots were fired in rapid succession; in 15 or 20 minutes her husband came into the house, and Mr. Downs said, “Give me that gun and I will take the shells out of it and bury it somewhere,” and her husband gave the gun to Mr. Downs.

As a witness in his own behalf, defendant testified that he had a 45 Colts, which was over the west window in the south room; that before the dance they all took several drinks together out of a two-gallon jug that contained whisky beer; that the deceased was playing the fiddle and his son, Otis, was dancing and an automatic pistol dropped out of his pocket; that he picked it up, and said, “Gentlemen, nobody ought to dance.with a pistol on; it might have went off and killed some woman or baby or somebody in the house.” Then the deceased jumped up, and said, “You little bull-dozing son of a bitch, give my boy his pistol;” that Otis was awful drunk; he could hardly stand up; that the deceased had a pistol in his hand and called him everything under Heaven, and said that he was running that dance; that his wife got between them, and the deceased reached over and hit him on the head with a pistol; then he reached up and took his gun from over the window, and the deceased wrenched the gun out of his hand and threw it over to his son Otis; then hit witness in the mouth with a pair of nucks, knocking some of his teeth out; then witness ran out, followed by the deceased, who kicked him and shot at him; that witness then found his gun out in the yard on the north side of the porch and he fired the shot; that he fired the shot because he thought the deceased was going to kill him.

Defendant admitted that he first denied having anything to do with the killing, and that he made the statement above set out at .the time he appeared upon the scene of the killing after he had committed the homicide and gave as his reason for so doing that was afraid that, if he admitted the killing, somebody in the crowd would then kill him.

It is well settled in this state that conflicts in the testimony as to whether defendant or the deceased was the assailant are settled by the jury. Under the evidence in this case the jury were warranted in finding defendant guilty of manslaughter in the first degree, and it is not within our province to weigh the evidence, and there is nothing in the record which would warrant us in believing that the jury arrived at its verdict from passion or prejudice, instead of according to the truth or falsity of the evidence as they found it.

It follows that the judgment appealed from must be affirmed.

EDWARDS and DAVENPORT, JJ., concur.


author: EDWARDS, J.

text:
    OTTO CHAPMAN v. STATE.
    No. A-6051.
    Opinion Filed April 28, 1928.
    (266 Pac. 786.)

      MacDonald & MacDonald, for plaintiff in error.
    ■George F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error was convicted in the district court of Bryan county on a charge of burglary, and his punishment fixed at confinement in the state penitentiary for a term of two years. The appeal was lodged in this court February 9, 1926. No briefs in support of the appeal have been filed, nor was there any appearance for oral argument at the time the case was submitted.

We have examined the record. The evidence supports the verdict and judgment and no jurisdictional error is apparent.

The case is affirmed.

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


text:
    EDDIE LEE DAVIS v. STATE.
    No. A-6105.
    Opinion Filed April 28, 1928.
    (266 Pac. 787.)

      Jesse H. Dunn, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Murray county on a charge of selling whisky, and was sentenced to pay a fine of $50 and to serve 60 days in the county jail.

It is contended that-the evidence is insufficient to sustain the judgment, and that the county attorney was guilty of misconduct in cross-examining his own witness. It appears that one T. B. Lebo was at a hotel in the town of Davis at which defendant worked as a porter; that he bought a pint of whisky from defendant, and gave him a check for $2.50. We gather that Lebo was more or less intoxicated or otherwise incapacitated, and was not very positive as to the identity of defendant, but he did testify that he purchased the whisky from defendant and gave the check introduced in evidence. The son of Lebo testified that defendant brought the check to him and complained that it had not been paid, and said same had been given to him by Lebo for whisky. Defendant denied he sold whisky to Lebo, but did not deny receiving the check nor the conversation in reference to it testified to by the son of Lebo. The county attorney, in the examination of Lebo, pressed him somewhat relative to the purchase and the identity of defendant. Where a witness is hostile, evasive, or unwilling, he may in the discretion of the court be examined more closely in the nature of cross-examination than is otherwise permissible.

The case is affirmed.

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


text:
    WALTER SMITH v. STATE.
    No. A-6221.
    Opinion Filed April 28, 1928.
    (266 Pac. 787.)
    See, also, 31 Okla. Cr. 132, 237 P. 464.
    Eaton & Cavanaugh, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the 'State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the superior court of Okmulgee county of manslaughter in the first degree and his punishment fixed at imprisonment in the state penitentiary for a term of six years.

The following in a brief review of the facts as disclosed by the record: On the date charged Walter Ingram, the deceased, a man about 30 or 32 years of age, went to the residence of Ed. Woods in the city of Henry-etta. He appeared to have been somewhat intoxicated, and he and Woods had a quarrel, in which Ingram claimed Woods owed him 50 cents for some work previously done. After some colloquy, Ingram left the house and went up the street, and there he and Woods again met and the quarrel was renewed. Woods left and had gone some 15 or 20 steps when defendant, a cripple walking on crutches, a brother-in-law of Woods, with his wife and sister-in-law, a girl about 13 years of age, came along. There is some evidence that Ingram addressed a remark to the girl calling her a “bitch.” Some of the witnesses testify that as defendant approached he had his knife open in his hand, and, while they did not hear the remark addressed to the girl, heard defendant say, “You can’t insult this little girl in my presence, you son of a bitchand he immediately struck at Ingram with the knife. That defendant locked his left arm around the neck of Ingram and they fell to the ground, defendant all the time cutting him with a knife. At this time Woods returned to the scene and had started to pull Ingram loose from defendant, who said: “Let the son of a bitch alone; I will get him off.” Woods then hit Ingram in the head with a rock, who then got up, and defendant struck him in the face with one crutch and told him to come back and he would try the other. Ingram walked a few steps and fell.

Defendant testified in substance: That he did not know about the previous difficulty between Woods and Ingram. That as he reached Ingram he made an insulting remark to his sister-in-law, and defendant thereupon remonstrated with him. That Ingram then turned upon him with an opprobrious epithet, and that he struck at him and missed. That Ingram caught him and they fell to the ground. He then got out his knife and opened it with his teeth and began cutting. That Ingram was a large man, and on account of his own crippled condition he be-lived it was necessary to use his knife to protect himstlf from great bodily harm. There was on the person of Ingram 10 or 11 knife wounds and another serious wound on the head evidently caused by the rock in the hands of Woods. From the wounds inflicted he died in a short time after the difficulty.

Counsel for defendant first argued that the court in some instances unduly restricted the cross-examination, particularly in limiting the details of the quarrel between Woods and deceased. It is insisted that this was material as showing the frame of mind of the parties and as shedding light on who was the aggressor in the difficulty. The force of this contention is weakened, however, by the fact that defendant has testified that he did not know about the difficulty between Woods and deceased at the time of the homicide. The cross-examination was too closely restricted. Rogers v. State, 8 Okla. Cr. 226, 127 P. 365; Tallon v. State, 22 Okla. Cr. 89, 210 P. 309; Grim v. State, 32 Okla. Cr. 297, 240 P. 1093. The questions excluded were not followed up by any offer of proof, and the error, if materially prejudicial, has been waived. Stouse et al. v. State, 6 Okla. Cr. 415, 119 P. 271; Wissinger v. State, 39 Okla. Cr. 324, 264 P. 631.

It is next argued that the court in the course of the trial made remarks prejudicial to the defendant. The trial was not conducted with that courtesy and decorum that should be observed. The assistant county attorney representing the state was too persistent in objections and in making comments or remarks to opposing counsel, who also in a few instances offended against the proprieties. The court also in'ruling several times made remarks which were better left unsaid. But in some instances the jury were withdrawn before comments were made. The cause, however, should not be reversed for this or any other reason apparent in the record.

Some of the errors are discussed in the brief, but they are not of sufficient importance to require a special discussion. In the light of all the evidence and the proceeding, we believe that justice requires that the punishment of six years assessed should be reduced to four years, and, as modified, the case is affirmed.

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


author: PER CURIAM.

text:
    JIMMIE CARNISH v. STATE.
    No. A-6104.
    Opinion Filed April 28, 1928.
    (266 Pac. 789.)
    Jesse H. Dunn, for plaintiff in error.
    Edwin Dabney, Atty. 'Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Murray county on a charge of transporting “home-brew Choc” and was sentenced to pay a fine of $50 and to serve 30 days in the county jail.

The record discloses that defendant! had concocted some home-brew in the rear part of his restaurant and brought the Choc beer and set one case on the fender of the car, one outside the door , and had another in his hands when arrested. The evidence is that the lot extended 30 feet to the rear' of the building, and the car was right against the back door. This hardly constitutes a conveyance from one place in the state to another. Section 7002, Comp. St. 1921; De Graff v. State, 2 Okla. Cr. 519, 103 P. 538.

There is no evidence that the “home-brew Choc” contained as much as one-half of .1 per cent, of alcohol, or that it contained any alcohol. Two witnesses for the state say they “think” it was intoxicating. The witnesses do not testify in positive terms and were not shown to be qualified to express an opinion as to its intoxicating qualities.

The case is reversed and remanded.


author: DAVENPORT, J.

text:
    HERB HYATT et al. v. STATE.
    No. A-6222.
    Opinion Filed April 28, 1928.
    (266 Pac. 789.)
    D. E. Ashmore and A. W. Anderson, for plaintiffs in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiffs in error, hereinafter called the defendants, were informed agianst in the district court of Okmulgee county, charged with the crime of having possession of one complete still, with the intention on the part of them, the said Herb Hyatt and Earl Middleton, to manufacture corn whisky. They were tried and convicted, the jury fixing the punishment of each for a term of three months in the county jail and a fine of $250. Motion for a new trial was filed and overruled and exceptions saved, and the defendants have appealed to this court.

The testimony on behalf fo the state, in substance, is as follows: C. W. Boots testified:

That he was deputy sheriff. That he knew the defendants. That he saw them about 2% miles south of Henry-etta. “They met down in kindy of a creek like. There were no other persons with them. I knew the defendants before the time I am speaking of. They were fixing up a still. They were cleaning it and putting it together and filling it with mash. This was about 7 o’clock in the morning when I saw the defendants. They were not near the road. There was no more than a road they had made in there. It was about three-quarters of a mile from the main road, or something like that. We were down in a little canyon. At that time I knew where the defendant Hyatt lived, but didn’t know about Middleton. I was there when they came up to the still. George Lutes was with me. When the defendants first came up I guess we were something like 30 or 40 yards from there. It was about 7 in the morning. The defendants came from the southeast. They came from the main road. They were traveling in a Ford touring car.
“Question by the County Attorney: Was there any containers around there? A. Yes, sir; some fruit jars.
“Q. Anything in them. A. No, sir; nothing in the fruit jars.
“Q. It was just some fruit jars they brought with . them in the car? A. Yes, sir.”

This is all the testimony that was introduced.

The defendants have assigned eight errors alleged to have been committed in the trial of their cause. They will all be treated together. The first assignment is: “(1) The trial court erred in overruling plaintiff in error’s motion for a new trial.” This error practically covers all of the questions raised in the assignment of errors of the defendants. The testimony in this case is postive as to the fact that the defendants were about 2% miles south of Henry-etta, in Okmulgee county, Okla., in a canyon, and that they were cleaning out a still already set up and filling it with mash. There is no testimony to contradict the testimony of the witness. The defendants urge that the testimony was incompetent because the officer did not have a search warrant or a warrant to arrest the defendants. This court has repeatedly held that it is not necessary to have á search warrant where the officer finds a still away from the home of the defendants and where it is in plain view; and under the law, where the officer sees persons committing a crime, he has the right to arrest them without a warrant. It is not denied by the defendants that they were at the still, nor is it denied that they brought the fruit jars to the still. The jury was the sole judge of the evidence and credibility of the witness, and this court has repeatedly held that where there is credible evidence to support the verdict of the jury it will not disturb the verdict.

In the case of Browning v. State, 31 Okla. Cr. 373, 239 P. 272, paragraph 2 of the syllabus, this court stated:

“Where there is evidence from which the jury may reasonably and logically find the defendant guilty of the crime charged, in the absence of unusual circumstances, this court will not set aside the jury’s verdict on account, of insufficiency of the evidence.” Shields v. State, 32 Okla. Cr. 344, 240 P. 661.

We hold the evidence in this case is sufficient to sustain a conviction; that the instructions of the court were fair to the defendants, and as a whole correctly stated the law; that the defendants had a fair and impartial trial.

Finding no errors prejudicial to the rights of the defendants, the judgment and sentence of the trial court is affirmed.

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


text:
    MINNIE ADAMS v. STATE.
    No. A-6077.
    Opinion Filed April 28, 1928.
    (266 Pac. 790.)

      Daniels & Stalcup, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Ottawa county for the .crime of murder, and was sentenced to a term of life imprisonment in the state penitentiary. A state of facts about as follows appears:

Defendant, a woman about 44 years of age, was married to the deceased, who was about 24 years of age. Deceased had left defendant in the state of Arkansas and was working at the mines at Picher, in Ottawa county. Defendant joined him there, and they had a room at a hotel; she was jealous and suspected deceased of associating with other women. On the day after she joined him at Picher. and three days before the homicide she procured at a pawnshop the pistol with which the homicide was committed. Deceased was shot while in bed undressed; the bullet entering behind the right ear and coming out near the left temple. He died in a few minutes, without making any statement. At the time of the shooting defendant was fully dressed, and immediately after came out of the room with the pistol in her hand, told some persons that she had shot her husband, and for them to go and see him. She went to the room with them and was arrested there.

The defense interposed is self-defense and a plea of insanity. The evidence of self-defense is not very substantial, although the court instructed fully on that point. The only material evidence of insanity is that of defendant, who testified that at one time she had been confined in an insane asylum in the state of Tennessee, and that she “just walked away.” The evidence did not disclose the date of this incarceration. She further testified that at the time she shot her husband they had a quarrel, in which he threatened her, and slapped her, and knocked her down, and showed her an obscene picture; that she lost control of herself, and did not remember anything until the next morning. There is very little conflict in the evidence. Few exceptions were taken in the course of the trial, and only one assignment of error is argued. That is error of the court in his instructions to the jury.

The court gave five instructions upon the subject of insanity, being Nos. 14, 15, 16, 17, and 20 of the court’s charge. No. 14 is in substance that the plea of insanity is interposed, and evidence has been introduced tending to indicate that defendant was of unsound mind, and that a person is capable of committing a crime, unless he be an idiot, lunatic, insane, or of unsound mind to such an extent as to temporarily or partially deprive him of reason, so that at the time of the commission of an act he is incapable of knowing its wrongfulness.

No. 15 is in substance that, when a plea of insanity is interposed, and there is evidence sufficient to raise a reasonable doubt in the minds of the jury as to the sanity of the defendant, whether by the state or the defendant, then the burden is on the state to prove sanity beyond a reasonable doubt.

No. 16 defines sanity, and informs the jury they must find from the evidence beyond a reasonable doubt that at the time of the commission of the alleged offense the defendant had understanding sufficient to distinguish right from wrong, or to be conscious of the commission of the act, or to realize its wrongfulness.

No. 17 informs the jury that they should consider the acts of the defendant at, prior to, and since the commission of the act charged, as shown by the evidence, in determining whether she was sane or insane at the time of its commission.

No. 20 told the jury what facts must be found beyond a reasonable doubt in order to warrant a verdict of guilty. Touching the matter of insanity it is as follows:

“* * * And you further find and believe from the same degree of proof that said defendant was at said time sane, and not insane, as in these instructions defined elsewhere, if during’ the trial of the cause a reasonable doubt in your minds has arisen as to the defendant’s sanity from the evidence offered by either the state or the defendant (emphasis ours), then you should find the defendant guilty of murder, unless you find that the act of said defendant whs justified, as in these instructions elsewhere defined. If you do not so find and believe, or you have a reasonable doubt upon and concerning any of the matters and things mentioned, referred to, and set out in this instruction, then you should acquit the defendant.”

Defendant insists that that part of the instruction emphasized takes away from defendant the defense of insanity, and left only self-defense. We do not so read the instruction. It is somewhat involved, and not happily phrased, but, taken in connection with other instructions, it simply means that if, in the course of the trial, evidence offered either by the state or defendant has raised a reasonable doubt in the minds of the jury of the sanity of defendant at the time of the homicide, then the state must prove defendant sane beyond a reasonable doubt, and unless they have done so they should return a verdict acquitting her. This is the law. The presumption that defendant is sane, a presumption which applies to all persons accused of crime, prevails until evidence, either on the part of the state or the defendant,, sufficient to raise a reasonable doubt of her sanity has been introduced; then the burden is on the state to prove her sanity beyond a reasonable doubt. Roe v. State, 17 Okla. Cr. 587, 191 P. 1048; McNeill v. State, 18 Okla. Cr. 1, 192 P. 256.

It appears to us that, under the record, the jury could have arrived at no other verdict than they did. No prejudicial error requiring a reversal appears in the record.

The case is affirmed.

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


text:
    OTIS WASHINGTON v. STATE.
    No. A-6103.
    Opinion Filed April 28, 1928.
    (266 Pac. 791.)
    John W. Willmott, Richard J. Roberts, and Joseph C. Looney, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Seminole county on a charge of selling intoxicating liquor, and was sentenced to pay a fine of $250 and to serve 180 days in the county jail.

The information charges that defendant sold a gallon of Choctaw beer containing more than one-half of one per cent, of alcohol, and capable of being used as a beverage. The witnesses for the state testify that Jeff Owens bought a gallon of Choctaw beer from defendant and paid him $2 for it, but had gone only about 20 yards when they were apprehended by the officers who seized the beer.

Several assignments of error are argued, but it is necessary to consider only one. That is, that the evidence is insufficient to sustain the verdict and judgment. There is no evidence that the Choctaw beer was ever analyzed, nor any evidence that any person tested it or that it contained any alcohol whatever. Choctaw beer is not made by any set formula, and the courts do not take judicial knowledge that it contains alcohol. It may or may not, depending on the manner in which it is concocted and the state of fermentation, if any. This has been many times decided by this court. Stanley v. State, 21 Okla. Cr. 166, 205 P. 775. Smith v. State, 30 Okla. Cr. 11, 235 P. 553; Horn v. State, 31 Okla. Cr. 284, 238 P. 233; Rambo v. State, 31 Okla. Cr. 214, 238 P. 869.

The case is reversed and remanded.

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


text:
    JOE WHISENHUNT v. STATE.
    No. A-6295.
    Opinion Filed April 28, 1928.
    (266 Pac. 792.)
    E. E. Ammons, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of McIntosh county for the crime of manslaughter in the first degree, and was sentenced to serve a term of four years in the state penitentiary.

The record discloses, a state of facts about as follows: At the time charged several persons, including the deceased and the defendant, were engaged in a poker game in a tent not far from the city of Eufaula. A dispute arose as to who Won a certain “pot.” Both deceased and defendant claimed they had won the money, and both seized it. A fight resulted between defendant and deceased, in which defendant had the better of it. The parties then went outside the tent, and the trouble was continued, and there defendant struck deceased in the face with a frying- pan. Then defendant, his brother, and another of the party left, defendant having an open knife in his hand. Deceased declared he had won the money taken by defendant, and that he was going to get it from him. He followed defendant and those who were leaving and overtook them about 50 or 60 yards from the tent. As he started to follow them, he picked up a stick; some of the witnesses say about a foot and a half in length and about as large or a little larger than a man’s thumb. Other witnesses state it was a larger club. When he overtook defendant, defendant turned, and the evidence is conflicting whether he immediately stabbed him, or whether deceased struck at defendant with a stick before he was stabbed. ■ Deceased, when struck, immediately ran, crying out that defendant had cut him; defendant pursued until stopped by another member of the party. Defendant testified: That during the fight in the tent he saw deceased with a pocketknife, that he knocked deceased down, and he dropped the knife, and the brother of defendant picked it up. That he went outside and there opened his own knife, but when he left the tent and started away he closed it. That as he was going away with his brother and another person, his brother called, and he again opened his knife, and as deceased struck at him with a stick he cut him, and deceased grabbed his side and hollered and then ran, and he pursued him for about. 3’0 yards.

Very few exceptions were taken in the course of the trial, and none to the charge of the court which covered fully and fairly the law of self-defense. The only contention argued is that the evidence discloses a ease of self-defense and is insufficient to sustain the verdict and judgment. There is no great conflict in the evidence; the principal contention is relative to the size of the stick in the hands of deceased. If the evidence were undisputed that defendant as a reasonable man acted in his necessary self-defense, he would be entitled to be discharged, but if there is evidence from which the jury could logically conclude that defendant used more force than was reasonably necessary to resist the attack or threatened attack of the deceased, the verdict should stand. Lee v. State, 33 Okla. Cr. 370, 244 P. 455; Jamison v. State, 35 Okla. Cr. 302, 250 P. 548. There is evidence that in the difficulty in the tent, defendant readily overcame deceased and again outside the tent was able to handle him without a resort to a deadly weapon. It must then have appeared to the jury that when deceased followed him, armed with only a small stick, as testified to by several of the witnesses, and without his having been struck he stabbed and killed deceased, such killing .was unnecessary and not based on any reasonable ground or apprehension that he was about to suffer any great bodily harm. Where there is evidence which, if believed, sustains the verdict and judgment, it is a question of fact for the jury. They are free to determine from all the evidence the facts as to whether the conduct of defendant in killing the deceased was warranted. Turner v. State, 4 Okla. Cr. 164, 111 P. 988; Mulkey v. State, 5 Okla. Cr. 75, 113 P. 532; Nutt v. State, 8 Okla. Cr. 266, 128 P. 165.

This court cannot say that there is not sufficient evidence to sustain the verdict and judgment.

The case is affirmed.

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


text:
    L. B. PHELPS v. STATE.
    No. A-6069.
    Opinion Filed April 28, 1928.
    (266 Pac. 793.)
    ■Clayton Carder, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of the crime of selling intoxicating liquors to Thomas Connor, on the 1st day of April, 1925, and the jury fixed his punishment at imprisonment in the county jail for 60 days and a fine of $100. Motion for a new trial was filed and overruled, and defendant has appealed to this court.

The testimony is, in substance, as follows: Tom Connor was called as a witness for the state, and testified that he bought about 2yz gallons of whisky from the defendant on or about the date alleged in the information; a check, introduced in evidence, showed to have been paid to the defendant, signed by Tom Con-nor, which the witness for the state alleged was the check he paid the defendant for the whisky he had bought. The witness testified further that he was very drunk, and that the defendant drove his car out a short distance from Mountáin View, near the stockyards, where he left him, and he stayed there until nearly daylight, and when he woke there was only a half gallon of whisky there by his car. The defendant denied the selling of the whisky to the state witness, and stated that he had cashed the check for Tom Connor on Sunday afternoon, at a certain garage, and called two more witnesses, who testified they were there when Tom Connor came and wanted the check cashed, and that the defendant, who lived near the gara.ge, took the check and went away and came back in a few minutes, but they did not know whether he gave Tom Connor money or the check back. That the prosecuting witness showed evidence of having been drinking.

The defendant alleges six errors committed by the trial court. The only error we deem necessary to consider is the sixth assignment, which is that the court erred in overruling the defendant’s motion for a new trial. In this case the evidence is conflicting, the state witness being positive as to a sale by the defendant to the prosecuting witness. The defendant testified that he did not make the sale to him, and that he cashed the check that was introduced in evidence for the defendant, and that it was not for the purchase of whisky. The defendant admits that he drove the car of the prosecuting witness out near the edge of town and there left him in a drunken condition.

This court has repeatedly held that where there is any credible evidence to sustain the finding of the jufry, this court will not disturb the verdict even though the evidence is conflicting. Love v. State, 12 Okla. Cr. 1, 150 P. 913; Thomas v. State, 13 Okla. Cr. 414, 164 P. 995.

Finding no errors prejudicial to the rights of the defendant, the judgment and sentence of the trial court is affirmed.

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


text:
    URV GROFF v. STATE.
    No. A-6217.
    Opinion Filed April 28, 1928.
    (266 Pac. 794.)
    C. H. Madden, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted in the district court of Harmon county, Oklahoma, of the crime of incest, in that he married his first cousin, Vina Sin-claire, on the 25th day of October, 1925. A trial by jury resulted in a verdict of guilty, and his punishment assessed at nine months in the state penitentiary.

This prosecution is based on section 1866, Compiled Statutes 19211, which reads as follows:

“Persons who, being within the degrees of consanguinity within Which marriages are by the laws of the state declared incestuous and void, intermarry with each other, or commit adultery or fornication with each other, are punishable by imprisonment in the penitentiary not exceeding ten years.”

Sections 7489 and 7492, Compiled Statutes 1921, bearing upon the question involved in this case:

“Marriages between ancestors and descendants of any degree, of a stepfather with a stepdaughter, stepmother with stepson, between uncles and nieces, aunts and nephews, except in cases. where such relationship is only by marriage, between brothers and sisters of the half as well as the whole blood, and first cousins, or second cousins, are declared to be incestuous, illegal and void, and are expressly prohibited.”
“The judge or clerk of the county court of any county in this state, upon application in writing signed and sworn to in person before him by a person legally competent to make and take oath, and having personal knowledge of the facts, setting forth the full names and ages and places of residence of the persons to be married and that such persons are not disqualified or incapable of entering into the marriage relation, nor of the relationship prohibited by law, and being satisfied of the truth and sufficiency of such application, and that there is no legal impediment to such marriage, shall issue under his hand and the seal of this court, the license authorizing such marriage; such license shall be valid only in the county in which it is issued.”

The evidence on the part of the state in this case ■is conclusive of guilt. It is shown that the defendant went to the court clerk in the city of Hollis, and there procured a marriage license to marry one Vina Sin-claire. Before procuring this license it was shown that the defendant made an affidavit to the effect that he and Vina Sinclaire were not related to each other within the degrees prohibited by law. He further made affidavit that they were not otherwise disqualified or incapable under the law of entering into a marriage relation, and that they were both residents of Hollis, Harmon county, Okla., giving their respective ages. The marriage certificate was issued and the ceremony performed by Rev. E. L. Looman, minister of the Church of Nazarene. The only excuse disclosed by the record in mitigation of his crime was that he was going to make the state of Texas his home, and the defendant shows by his testimony, after he was arrested, he separated from his wife, and they went to Texas, and a second marriage ceremony, was performed in Texas. The Texas ceremony in n¡6 way whatever affects the marriage in Oklahoma.

In view of the facts disclosed by the record in this case, it is the opinion of the court that the ends of justice will be best met by modifying the judgment and sentence of the defendant from 9 months in the penitentiary to a term of 60 days.

Defendant assigns eight errors alleged to have been committed by the trial court, all of which relate to the legality of his conviction and the overruling of his motion for a new trial. Finding no errors prejudicial to the rights of the defendant, the judgment and sentence of the trial court is modified from imprisonment in the penitentiary for 9 months to a term of 60 days, and, as so modified, is affirmed.

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


text:
    JOHN EDMINSON v. STATE.
    No. A-6109.
    Opinion Filed April 28, 1928.
    (266 Pac. 1118.)

      W. A. Bishop, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted in the county court of Seminole county on a charge of having possession of intoxicating liquor, and was sentenced to serve a term of 180 days in. the county jail and pay a fine of $500.- The judgment was entered on November 9, 1925, and the appeal lodged in this court on March 9, 1926, the last day on which an appeal could be filed. No briefs in support of the appeal have been filed, and no appearance for oral argument was made at the time the case was submitted. The evidence reasonably supports the judgment, and no fundamental error is apparent. The case is affirmed.


text:
    JOHN SIMPSON v. STATE.
    No. A-6656.
    Opinion Filed March 1, 1928.
    Rehearing Denied May 5, 1928.
    (266 Pac. 783.)

      M. D. Hartsell and T. H. Davidson, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Muskogee county on a charge of robbery with firearms, and was sentenced to serve a term of 30 years in the state penitentiary.

This is a second appeal; a former conviction having been reversed by this court. Williams et al. v. State, 35 Okla. Cr. 171, 249 P. 433. After the reversal of the former conviction, a severance was had, and the defendant, John Simpson, was tried alone.

On December 20, 1924, about the hour of 9:30 p. m., two men appeared at the store of Robert Nesbitt, at which Nesbitt and a young woman named Rhoda Bowman were working, and, by pointing a pistol, made them hold up their hands. They then robbed the person of Nesbitt, and rifled the cash register. Defendants were arrested in Muskogee on January 6 following. The evidence is that one of the persons committing the robbery wore a peculiar pair of glasses with divided lenses; the top part colored, the lower part clear. At the time of the arrest defendant had in his pocket a pair of glasses answering the description of those worn by one of the robbers. Soon after the arrest Nesbitt and Rhoda Bowman identified defendants as the persons engaged in the robbery. There are some other corroborating circumstances. The defense was an alibi. The defendant testified, but the codefendant, Williams, did not take the stand.

It is contended that, since the robbery is charged to have been committed by two persons, the prosecution should have been under the conjoint robbery statute (section 1793, Comp. Stat. 1921). There is but one definition of robbery under the statutes of this state. That is robbery as defined by section 1784, Comp: St. 1921. Conjoint robbery, as referred to in section 1793, Comp. Stat. 1921, is merely robbery as defined by section 1784, when committed by two or more persons. The latter section is a statute of classification and not of definition. In 1923 the Legislature enacted chapter 85, Session Laws 1923, further classifying robbery, and providing an enlarged punishment for robbery when committed by any person or persons by the use of firearms or other dangerous weapons. It applies whether the robbery is by one person or two or more conjointly. This was the law in force at the time the offense here charged was committed. Since that time this statute has been further amended by chapter 44, Session Laws 1925. Richards v. State, 22 Okla. Cr. 199, 210 P. 295; Randall v. State, 33 Okla. Cr. 262, 243 P. 983; Wells v. State, 34 Okla. Cr. 179, 245 P. 1007.

The instructions here properly define robbery and submit the punishment for robbery by firearms, the class of robbery charged and shown by the evidence.

It is argued at length that the evidence is insufficient to support the conviction. Counsel admits the well-settled rule of this court that, where there is evidence, although conflicting, which, if believed, is sufficient to sustain the judgment, the court will not invade the province of the jury and weigh the evidence, but will leave to the jury the discretion of determining the weight and sufficiency of the evidence and the credibility of the witnesses. He does not assert that there is not sufficient evidence of guilt, which, if believed, sustains the conviction, but that it comes to the court under such condition that the case presents an exception to the general rule; that, in view of the sharp conflict in the evidence and the contradictions in the testimony of the state’s principal witnesses, Nesbitt and Bowman, this court should weigh the evidence and determine the credibility of the witnesses. The proof of guilt must stand or fall on the evidence of Nesbitt and Miss Bowman, they were the only persons present at the scene of the crime other than the persons who committed the robbery. Both of these witnesses testify positively that the defendant and Roy Williams are the persons who committed the offense. They were also the principal witnesses at the former trial, at which time they were cross-examined at great length, particularly on the matter of identification, the examination going minutely into the appearance of the persons committing the robbery, the manner in which they were dressed, and the reason of the witnesses for their identification.

There are conflicts in the testimony of these witnesses on this trial and the former trial in the matter of details, which are stressed and pursued here at length in a most searching cross-examination, and it is urged . that these contradictions so weaken the testimony of these witnesses that the court should not permit the conviction to stand. There is no conflict in the testimony as to the ultimate fact. These witnesses in each instance testify that the defendant and Roy Williams were the persons who committed the robbery. The identity of a person is in large measure a matter of opinion. It may be based on well-defined characteristics, but it is sometimes almost, if not quite, inexplicable and incommunicable. That is, a person may recognize another without being able to state or describe any peculiarity or characteristic on which his identification is based, and a witness may testify that he saw defendant after his arrest and recognized him as the person he saw commit the offense. Yarbrough v. State, 105 Ala. 43, 16 So. 758. That is largely the situation here. Under all the circumstances we see no reason to depart from the rule and to discredit or question the testimony of these .witnesses upon the matter of identity.

'Complaint is made that the court excluded competent and material evidence offered by defendant, and admitted incompetent evidence for the state. Under this assignment various items are discussed in the brief. In one instance evidence was offered and excluded that a witness had known defendant for several years, and that she could not have identified him dressed as the state’s witnesses testify. The witness was offered as an expert, and defendant contends that any fact or circumstance tending to disprove the identification or to show a mistake of identity is competent, citing White v. Com., 80 Ky. 480. That case, even if sound, is not, we think, in point. There the defendant sought to show that, about the time of the commission of the offense for which he was on trial, there was another person in the same city so like defendant in personal appearance that the witness who had known him many years was deceived as to his identity. That is not the situation here. The testimony offered is not upon a point calling for the opinion of an expert. The admission of testimony of this kind would introduce a novel and confusing question as variable as the mind or the interest of the witness might be.

Among the items objected to as incompetent is the testimony of the chief of police of Muskogee. He was asked why he had not arrested defendant. His answer in substance is that there was nothing particularly in the description furnished that warranted it, and stating that he knew that John had been — at which point he Was interrupted, and did not conclude his answer. This, it is contended, constitutes an attack on the character of defendant, leaving the inference that he had been in the penitentiary or into something which disparaged him. This evidence was not competent, but we do not see that it is of any material prejudice. It is also claimed that the admission in evidence of the testimony of the witness Davis given at the former trial, since deceased, was prejudicial, for the reason that at the former trial the witness drew a diagram of the scene at the point where defendant was arrested, which diagram was not used in this trial; that the testimony of the deceased witness without the diagram, in conjunction with the testimony of other witnesses, tended to impeach defendant’s explanation as to where he was going at the time of his arrest, and that, if the diagram had been included, the testimony of the deceased witness would convey a different meaning. This is not apparent from the record. Miss Bowman identified a hat offered in evidence which had been" procured from rooms where the defendant had resided as being the hat, or looking like the hat, worn by him at the time -of the robbery. It is insisted that this was brought out by leading and suggestive questions, and was in fact prompted and directed by the assistant county attorney. The examination is leading, but the witness was intelligent, and we think the testimony was not colored by reason of any leading questions.

It is also argued at some length that the transcript of the evidence of the cross-examination of the witness Beck, who testified for defendant at the former trial, and who was not present at this trial, was prejudicial. Beck was the principal witness to prove alibi. The reversal of the conviction in the former case was, in the main, on account of the misconduct in the cross-examina* tion of this witness. In the introduction of the cross-examination the objectionable part is omitted. It is insisted that a portion of this cross-examination is incompetent, and amounts to an attack on the character of defendant. The witness Beck was a partisan, and admitted in this cross-examination that in talking to the county attorney or assistant county attorney about the case he had not been truthful, but sought to deceive them. Under these circumstances a searching cross-examination was permissible, and this evidence is more a breaking down of the testimony of this witness and a showing of his interest and bias than an attack on the character of defendant. This cross-examination disclosed that defendant had formerly served a term in the penitentiary. This is objected to, but it was admitted by defendant on his cross-examination that prior to the time of this crime he had been sentenced to the penitentiary for a term of 10 years for burglary, had served a part of that time, and his sentence had been commuted. Various other matters are argued under this assignment, which we do not discuss in detail, but all have had attention.

Complaint is also made .that there is misconduct of the county attorney in his argument in commenting on the failure of defendant to call his codefendant, Roy Williams, as a witness. A codefendant, against his will, cannot be compelled to testify, and, where two or more persons are included in the same information, and are tried separately, the failure of a defendant to call his codefendant as a witness is not a circumstance from which unfavorable inferences may be drawn nor any legitimate argument against a defendant made. The comment is misconduct. Slight investigation by1 the county attorney will inform him that this comment ia not legitimate argument. Buxton v. State, 11 Okla. Cr. 85, 143 P. 58; Irvin v. State, 11 Okla. Cr. 301, 146 P. 453; Hopkins v. State, 11 Okla. Cr. 385, 146 P. 917; Wells v. State, 29 Okla. Cr. 11, 231 P. 1087.

We have given this case the consideration that its importance warrants, and have reached the conclusion that the evidence is sufficient to sustain the verdict, and, since two juries of Muskogee county have passed on these questions of fact, and have found the defendant guilty, the errors shown by the record do not require a reversal. Justice requires that the punishment be reduced to the minimum -of 25 years, and, as modified, the case should be affirmed.

The case is modified and affirmed.

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


text:
    MRS. S. L. BAREFIELD v. STATE.
    No. A-5998.
    Opinion Filed Feb. 11, 1928.
    Rehearing Denied May 5, 1928.
    (266 Pac. 786.)

      Bond & Bond,' for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. -Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as defendant, was by information filed in the county court of Stephens county, Okla., charged with, the unlawful sale of one pint of intoxicating liquor. Defendant entered her plea of not guilty to the charge; a jury was impaneled, testimony taken, and the jury returned a verdict finding the defendant guilty as charged in the information, and fixing her punishment at a fine of $5O'O and six months’ imprisonment in the county jail. Motion for new trial was filed and overruled and exceptions saved. From the sentence and judgment the case is brought to this court for review.

The defendant has assigned four errors alleged to have been committed by the trial court. We will first consider the fourth error assigned, which is as follows-: “(4) Because the evidence, is insufficient to sustain, the verdict.”

The testimony on behalf of the state, in substance, is that Jack Neal stated that he went to the home oí the defendant and that he bought a pint of whisky from her. His memory becomes bad when asked what he paid her for it. I. B. Gossett and C. N- Coker testify that they saw Jack Neal go to the home of the defendant, and they followed him there and one was looking through a window and the other through a door and saw the defendant and Jack Neal together, and saw Jack Neal put a bottle of whisky in his pocket and lay something down on the dresser or a cabinet, and the defendant picked it up and -took it away; that when Jack Neal came out of the house he had a pint of whisky and told them he bought it from the defendant.

The defendant testified in her own behalf that she met Jack Neal some time during the day previous to the occurrence at the house and asked him to get her some whisky, and that he came to her home and told her that he had gotten the whisky and asked her to take two pints, but that she only took one, and that she paid him for it. When the officers went into the house to talk with the defendant she told them what whisky she had was up in a jar or vessel. The defendant introduced some other testimony which conflicted with the statements of the state’s witnesses.

From a careful examination of the record we find that the evidence of the state is sufficient to sustain the verdict of the jury. Where there is a conflict in the evidence this court will not set aside a verdict or judgment if there is any competent evidence wliich, if believed by the jury, is sufficient to uphold the verdict.

There is nothing in the record to indicate that the defendant had been engaged in the sale of whisky prior to this alleged sale. Under the testimony in this case, and the small quantity of whisky alleged to have been sold by the defendant, it is the opinion of the court that the ends of justice would be best subserved by modifying the judgment, from imprisonment in the county jail for 6 months; and $500 fine, to imprisonment in the county jail for 60 days and a fine of $200.

There are other errors argued, but on the view we take of this record we do not deem it necessary to consider them. From a careful examination of the record, we find no error prejudicial to the rights of the defendant was committed.

For the reasons herein stated, the judgment is modified, and, as modified, is affirmed.

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


text:
    HOSEA LE FLORE v. STATE.
    No. A-6401.
    Opinion Filed May 5, 1928.
    (266 Pac. 1109.)
    Carter & Carter, for plaintiff , in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted in the county court of Okmulgee county on a charge of having possession of mash and was sentenced to imprisonment in the county jail for SO days and to pay a fine of $50. Motion for a new trial .was filed and overruled and exceptions saved. From the judgment and sentence,. the defendant has appealed to this court. A petition in error was filed in this court on the 5th day of October, 1926.

Under the rules of this court, where an appeal is not supported by brief, and no appearance is made for the plaintiff in error, it is assumed that the plaintiff has abandoned the appeal or it is without merit.

A careful examination of the record discloses that the information charges an offense; that the evidence tends to support the charge; that the instructions of the court were fair to the plaintiff in error;- and that there were no fundamental errors affecting the rights of the defendant.

The judgment is affirmed.

DOYLE, P. J., and EDWAKDS, J., concur.


text:
    FRED BALLENTINE v. STATE.
    No. A-6183.
    Opinion Filed May 5, 1928.
    (266 Pac. 1110.)

      H. ET. Thomas, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted' in ‘the district court of Le Flore county on a charge of rape in the second degree and sentenced to serve a term of one year in the state penitentiary.

No notices of appeal upon the court clerk and county attorney appear in the record, nor have any such notices been filed with the clerk of this court, nor was any service of summons in error ever made nor any waiver filed in this court. At the time judgment and sentence was entered, counsel for defendant gave oral notice in open court of his intention to appeal. It has been held many times by this court that, in order to give this court jurisdiction of an attempted appeal, the statutory requirements must be complied with. Shell v. State, 21 Okla. Cr. 130, 205 P. 192; Merritt v. State, 35 Okla. Cr. 194, 249 P. 436.

For the reasons assigned, this court does not acquire jurisdiction of the attempted appeal, and the same is dismissed.

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


text:
    CLYDE COLLINS v. STATE.
    No. A-6189.
    Opinion Filed May 5, 1928.
    Rehearing Denied June 9, 1928.
    (267 Pac. 872.)
    Warren & Warren, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Choctaw county on a charge of attempted rape and was sentenced to serve a term of five years in the state penitentiary.

As shown by the record, at the time charged defendant took hold of the prosecutrix, Daisy Lick, threw her upon the ground, and attempted to have sexual intercourse with her, but was resisted by the prosecutrix and did not accomplish an act of intercourse. Defendant offered no evidence. No demurrer was filed to the information, but an objection to the introduction of evidence was interposed. . Under the rule that where an information is not challenged except by objection to introduction of evidence every intendment and inference Is indulged in favor of the information, the objection was properly overruled.

The brief for the state admits that the case on the part of the state is rather poorly tried. There is no direct evidence that the prosecutrix was not the wife of defendant; it sufficiently appears, however, from the circumstances. The court in his instructions did not differentiate between the offense of assault with intent to rape and an attempt to rape, but used the terms interchangeably. No exceptions were taken to the instructions, and no request for additional instructions made. Section 2297, Comp. St. 1921, defines the offense of attempting to commit a crime and provides the punishment. Where the punishment for the offense attempted may be four years or more in the state penitentiary, the punishment for an attempt to commit may be not more than one-half of the longest term of imprisonment prescribed upon a conviction for the offense so attempted. There is ample evidence to sustain the judgment.

Under the record before us the punishment assessed is exclusive. The judgment is therefore modified by reducing the punishment of five years to a term of two years in the penitentiary, and, as modified, the case is affirmed.

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


text:
    ED MILLER v. STATE.
    No. A-6182.
    Opinion Filed May 5, 1928.
    Rehearing Denied June 9, 1928.
    (267 Pac. 673.)

      R. Y. Nance and Tom Payne, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, who for brevity will be hereinafter called defendant, was convicted in the district court of Okmulgee county on a charge of rape in the first degree, and was sentenced to serve a term of 15 years in the state penitentiary.

Defendant is an unmarried white man between 40 and 45 years of age. The rape is charged upon the person of S'arene Guillroy, a French-Negro girl, about 9 years old. Defendant, a cigar maker, lived' alone in the town of Okmulgee. The mother of the Guillroy girl did laundry work for him. The girl and her sister Nellie Guillroy were accustomed to go to his residence to procure the laundry and return it. In the afternoon of the day charged, they went to the residence, and were there for some time. Ben Mayes, a negro policeman, saw the girls go into defendant’s house, and after some time telephoned the police station, and two other policemen joined him, and they then went into the house, and there found defendant apparently attempting to have intercourse with Sarene Guillroy. They arrested defendant, and took the girls to the office of a physician, where a physical examination was made. We deem it unnecessary to recite thé details of the evidence further than to say the testimony of the two girls, the physician, and the peace officers clearly proves a case of rape. Defendant denied having had, or attempted to have, intercourse with the girl, and testified the girls were accustomed to come to his place* and that he sometimes gave them small sums of money, and they would go into his pockets in search for money, and this action on their part was probably the cause of his trousers being open at the time the officers came in. Very few objections were made in the course of the trial. No exceptions were taken to the instructions, and they are more liberal to defendant than the law warrants. It is argued that the physical examination of the Guillroy girl by a physician against her will and without order of court renders the evidence of the physician incompetent. No authorities are cited in support of the contention, and it is not tenable. Leard v. State, 30 Okla. Cr. 191, 235 P. 243.

It is also urged that counsel for the state was permitted to lead the witness Sarene Guillroy. Leading questions were asked this witness, but, in view of her sex, age, and ignorance, and the nature of her testimony, leading questions were proper. Morris v. State, 35 Okla. Cr. 5, 247 P. 418; Perkins v. State, 35 Okla. Cr. 279, 250 P. 544.

Complaint is also made that Dr. Alexander, the physician who made the physical examination of the Guillroy girl, was permitted to give hearsay testimony. The physician testified that the officers brought the girl to his office, that he examined her, found her clothes and legs soiled and wet with a slimy substance; that there had been some penetration of the girl which, in his judgment, had been within the last 20 or 30 minutes; that he had Dr. Isam examine the slimy substance, and that he found it to be spermatozoa. Upon objection, the latter part of the answer was stricken. After the jury had retired, they returned into court, and requested that certain testimony be read. This was part of the testimony of Sarene Guillroy and Dr. Alexander. Defendant complains, that all the testimony of these wit- . nesses was not read, and that part of the testimony of Dr. Alexander referring to the analysis made by Dr. Isam should not have been read. It is not clear that the result of Dr. Isam’s examination was read. All the testimony requested by the jurors was read, and they were particularly asked if 'they desired anything further. This was proper. Section 2730, Comp. St. 1921; Gunnells v. State, 7 Okla. Cr. 98, 122 P. 264. It appears that the analysis of Dr. Isam was made under the direction Of Dr. Alexander. But, even if this single statement of the result of the examination is not admissible, still under the entire record the admitting it is not reversible error.

Lastly, it is urged that the court erred in overruling the motion for a new trial on the ground of newly discovered evidence. The newly discovered evidence is in the form of an affidavit of one Dozier that on the day of the trial he heard a negro boy, 16 or 17 years of age, state to another negro boy that on the morning of the alleged offense, and prior thereto, he had had intercourse with the prosecuting witness, Sarene Guillroy. There was no allegation as to the whereabouts of either of these negro boys, nor any showing why their affidavits had not been procured, nor attempt to show that the statement of this boy was true, or obtainable if true. The showing was wholly insufficient to warrant granting a new trial on the ground of newly discovered evidence- Section 2754, Comp. St. 1921; McKinney v. State, 18 Okla. Cr. 562, 196 P. 974; Lawson v. State, 86 Okla. Cr. 349, 254 P. 110.

We appreciate fully the serious nature of the charge and the consequences to defendant, but there is no reason shown by the record why this court should interfere with the judgment.

The case is affirmed.

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


author: EDWARDS', J.

text:
    E. A. DUNN v. STATE.
    No. A-6111.
    Opinion Filed May 5, 1928.
    (267 Pac. 279.)
    Morgan, Osmond & Morgan, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS', J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Caddo county on a charge of maintaining a place where intoxicating liquors were kept, and was sentenced to pay a fine of $350, and to serve six months in the county jail.

Before entering upon the trial, defendant filed a motion to suppress evidence as having been obtained by an illegal search warrant. This motion was sustained in part and overruled in part. It appeared that at one time D. A. Tucker, a federal prohibition officer, filed before a justice of the peace of Caddo county an affidavit for a search warrant for defendant’s premises, A search warrant in the regular form was thereupon issued directed to the sheriff or constable of Caddo county. Apparently this search warrant was never delivered to any sheriff or constable, but was delivered to Tucker, the federal prohibition officer, and by him served and a return made by him as federal prohibition officer. Some days later a complaint in the form of an affidavit, signed by the sheriff, was filed before justice of the peace, and a search warrant was issued thereon to search defendant’s premises. There was no jurat of the justice of the peace attached to this instrument to indicate that, it had ever been verified, and the trial court sustained the motion to suppress the evidence obtained by this latter search warrant, and overruled the motion as to the search warrant served 'by Tucker as federal prohibition officer.

The question then arises, May a search warrant issued to a peace officer of the state be served by a federal prohibition officer, or a private person? The question must be answered, in the negative. Article 19, c. 7 (Comp. St. 1921), regulating procedure criminal, provides for the issuance and service of search warrants. They must run in the name of the state to a peace officer. A form of warrant is provided by section /2881 of said article 19, setting out that the warrant may run to any sheriff, constable, marshal, or policeman. A search warrant may be served by any of the officers mentioned in its direction. Section 7009, Comp. sSt. 1921, supplements article 19, but does not modify its general provisions. A search warrant is “process.” McAdoo v. State, 36 Okla. Cr. 198, 253 P. 307. Section 2882, Comp. St. 1921, reads:

“A search warrant may in all cases be served by any of the officers mentioned in its direction, but by no other person except in aid of the officer, on his requiring it, he being present, and acting in its execution.”

A federal prohibition officer is a. private person so far as the state statutes are concerned, and is without any authority to execute state process, except as he may. do the same in aid of any state officer named in the process. See Halsted v. Brice, 13 Mo. 171.

• All the evidence having been obtained by a private person attempting to serve process directed to a state officer, it follows that the motion to suppress should have been sustained.

The case is reversed and remanded.

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


text:
    HOMER STEWARD v. STATE.
    No. A-6413.
    Opinion Filed May 5, 1928.
    (267 Pac. 280.)

      Orbie W. Johnson, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called defendant, has appealed from a conviction from the county court of Caddo county, Okla., on a charge of transporting intoxicating liquor. The evidence is brief, and on the part of the state is that Watt Carruth and Roe Netherton were city marshal and watchman, respectively, of Carnegie, who testified they went up to where a number of parties were playing poker, and that the defendant in this case, when he saw them, ran, and, when he got about 50 or 60 yards from them, they saw him throw something they thought to be bottles of whisky. They further testify they found some broken bottles in the weeds near the railroad fence near where they claim to have seen defendant throw some' thing, containing about a tablespoonful of whisky. However, neither of the state witnesses claim to have tasted the contents found in the bottles, nor did they give any reason why they said it was whisky.

Four witnesses on behalf of the defendant testify that they were with the defendant when the defendant started to run, and that they did not see him throw anything away; that they had the same opportunity to see as the state witnesses.

It is argued by the defendant that the testimony is insufficient to sustain a conviction. We agree with the argument of the defendant that the testimony is insufficient to sustain a conviction. The distance the defendant in this case was from the state witnesses when they claim he threw away something when he ran makes it difficult for them to have seen what the defendant was doing, or to tell what he might have thrown away, if anything, and it is extremely doubtful from the record in this case that the defendant threw away anything.

We are not satisfied that the guilt of the defendant has been proven with that degree of certainty required under the statute.

The case is reversed and remanded.

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


text:
    J. A. BIRD v. STATE.
    No. A-6190.
    Opinion Filed May 8, 1928.
    (267 Pac. 281.)
    James M. Hays and Floyd Wheeler, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

This appeal is from a judgment of conviction rendered on the verdict of a jury finding the defendant guilty of grand larceny and fixing his punishment at imprisonment in the penitentiary for the term of one year and one day. The information charges that the defendant, J. A. Bird, on or about the 4th day of June, 1925, did take, steal, and carry away one manila cable of the value of $200, the personal property of P. J. Viogel and J. E. Taylor.

For a reversal of the judgment, the defendant relies upon the insufficiency of the evidence to support the verdict and exceptions taken to instructions given.

The testimony shows that J. E. Taylor and P. J. Vogel, partners, operating under the firm name of the Macey Drilling Company, were drilling an oil well for the Henry Oil Company, on a lease in Okmulgee county, about 6 miles south of the town of Beggs. Taylor and Vogel were using a manila cable of about 500 feet, from which cable they had cut one bull rope of about 90 feet in length, and besides this had another bull rope, a soft laid rope, that they were using on said lease.

Late in May, 1925, Taylor and Vogel quit drilling, and this manila rope was left laying close to the derrick on the lease. It was last seen by Vogel on June 2, 1925, and by Taylor on June 3d, at which later time it was still on the lease. Taylor returned to the lease on June 6, 1925, and the cable was missing. The evidence shows that neither he nor Vogel gave anybody consent to take this cable. An immediate search was started to find the cable. Vogel went to all the junk yards in Okmulgee, and also to the city of Okemah, but could find no trace of the cable at either of these places. On the 7th day of June Vogel received information that caused him to go to the city of Muskogee on the morning of June 8th in search of this cable. There in possession of the Kansas City Iron & Metal Company, a junk shop, operated by J. H. Lumal and others, Vogel discovered a large quantity of this cable, cut up into lengths of about 3 feet, also parts of the soft laid bull rope. Samples of this cable were taken into possession by Vogel, and, upon the trial, both Vogel and Taylor positively identified the same as part of the rope stolen from their lease.

It appears that the defendant, Bird, had constructed a derrick for the Henry Oil Company, and was familiar with the location of this lease and of the property located thereon before this larceny took place.

The witness J. H. Lumal positively identified the defendant as the man from whom he had. purchased on the 8th day of June, 1925, 700 pounds of manila cable rope, cut up into lengths of about 2y2 feet each, and testified that he paid the defendant $10 in. cash, and gave him a check for $12.20 in payment for the same, the price paid being 3 cents a pound.

At the close of the evidence for the state the defendant demurred, and moved for a directed verdict of acquittal. The court overruled the demurrer and the motion for a directed verdict of acquittal. The defendant did not testify.

It is contended in this court that the verdict is not sustained by sufficient evidence, in that there is no proof of identification of the pieces of rope taken by the witness Vogel from the Lumal junk shop as being parts of the stolen cable.

Suffice to say that the evidence on the part of the state, like the evidence in every larceny case, is largely circumstantial. The identification of the parts of the cable found in the possession of the Kansas City Iron & Metal Company, at Muskogee, two days after the cable was missing, and which was undisputed, is amply sufficient to trace the possession of the stolen property to this defendant. The fact that the cable was cut up into small lengths and sold for the price of about one-tenth of what' it was worth, coupled with the unexplained recent possession of the stolen property, we think sufficient to justify the verdict.

The only recital in the record as to the instructions is as follows:

“The Court: Defendant excepts to the giving of instruction No. 4. Let the record show that 4% was given at the request of defendant, and then given an exception to the giving of No. 5, and show that 5x/2 was given at the request of defendant, and show that instruction No. 6% was given at the request of defendant.”

Thus it appears from the record that the only instructions requested by defendant were given.

Taken as a whole, the law of the case is fairly presented in the instructions given.

Complaint is made of alleged “misconduct of the county attorney in making all of his argument to the jury after the argument of the attorney for the defendant.”

' The question argued is not presented by the record. It merely shows that, in the motion for new trial, which was not verified, this is set forth as a ground for new trial.

It is the well-settled doctrine in this state that error must affirmatively appear from .the record. It is never presumed. Every presumption is in favor of the regularity of the proceedings had upon the trial. Killough v. State, 6 Okla. Cr. 311, 118 P. 620; Keeter v. State, 15 Okla. Cr. 139, 175 P. 263; Proctor v. State, 22 Okla. Cr. 445, 211 P. 1057.

Upon a consideration of the whole case, no reversible error is found, and the judgment of the court ■below is affirmed.

EDWARDS’ and DAVENPORT, JJ., concur.


text:
    LETCH HOSKINS v. STATE.
    No. A-6786.
    Opinion Filed May 12, 1928.
    (267 Pac. 285.)
    L. M. Gensman, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted on a charge of unlawful possession of intoxicating liquor, and on the 26th day of September, 1927, he was sentenced to pay a fine of $150 and to be confined in the county jail for 60 days. From the judgment an appeal was duly perfected by filing in this court on October 20, 1927, a petition In error with case-made.

The Attorney General has filed a motion to abate, supported by the affidavit of G. H. Frampton, sheriff of Comanche county, showing that on the 22d day of March, 1928, Letch Hoskins, plaintiff in error, died, and that said affiant was present at the funeral held on March 24th.

In a criminal action, the purpose of the proceeding being to punisb the defendant in person, the action must necessarily abate upon his death.

It is therefore adjudged that the proceedings in this action do abate, and the trial court is directed to enter an order to that effect.


text:
    LIZZIE GORDON v. STATE.
    No. A-6167.
    Opinion Filed May 12, 1928.
    (267 Pac. 285.)
    Bicking & Wilson, for plaintiff in- error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in-error, hereinafter called defendant, was convicted in the municipal criminal court of the city of Tulsa on a charge of illegally transporting whisky, and was sentenced to pay a fine of $500 and to serve six months in the county jail.

The judgment was rendered on December 15, 1925, and the record was lodged in this court on April 7, 1926. The record discloses that notice of appeal w'as served on the assistant city attorney on the same day» No service of notice of appeal was served on the court clerk, as required by section 2809, Comp. Stat. 1921, nor was the notice waived by the Attorney General, nor was any summons in error issued. An appeal in a criminal case is perfected by the service of a notice upon the clerk of the court where the judgment was entered stating that the appellant appeals from the judgment and by the service of a similar notice upon the prosecuting attorney. These notices are the prerequisite steps to conferring .upon the appellate court jurisdiction to hear and determine an appeal. Lutke v. State, 37 Okla. Cr. 18, 255 P. 719.

For the reasons assigned, the attempted appeal is dismissed.

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


author: DAV1ENPQRT, J.

text:
    JIM HUTCHINSON v. STATE.
    No. A-6154.
    Opinion Filed May 12, 1928.
    (267 Pac. 284.) .
    Dan W. Weldon, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAV1ENPQRT, J.

The plaintiff in error, hereinafter called the defendant, was convicted in the county court of Carter county, Okla., on an information which charged that he willfully and unlawfully conveyed certain spirituous liquor, vinous liquor, malt liquor, fermented liquor, and intoxicating liquor, to wit, nine and one-half gallons of corn whisky. He was convicted and sentenced to serve a term of 60 days in the county jail and to pay a fine of $100 and costs, and has appealed to this court.

All the errors assigned relate to the sufficiency of the evidence to sustain a conviction.

Con Keirsey, deputy sheriff of Carter county, testified on behalf of the state: That on the 27th day of April, 1925, he saw the defendant on the highway between Wilson and Healdton. He was driving in a Ford car, accompanied by G. L. Lasiter. That the defendant and Lasiter had nine and one-half gallons of corn whisky in the car when he came up to it. That he followed them for some distance.

Defendant denied that he had any interest in the whisky or the car, and stated that the car and the whisky belonged to G. L. Lasiter. The defendant admitted that he was in the car with Lasiter, and that the whisky was in the car when the officer overtook, the car.

The question of the guilt or innocence of defend» ant was, under proper instructions of the court, submitted to the jury. The evidence in the case is. conflicting, but, where there is credible evidence to support the verdict of the jury, this court will not. disturb the verdict.

The record examined, and evidence held sufficient to sustain the conviction. The judgment and sentence are affirmed.

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


text:
    HUBERT SMITH v. STATE.
    No. A-6203.
    Opinion Filed May 12, 1928.
    (267 Pac. 283.)
    Ash & Jones, for plaintiff in error.
    George F. S'hort, Atty. Gen., and Leverett Edwards, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

This appeal is from a judgment of conviction rendered on the verdict of a jury finding the defendant guilty of grand larceny and leaving his punishment to be fixed by the court. Motion for new' trial was duly filed and overruled, and on the 3d day of November, 1925, the court sentenced the defendant to imprisonment in the penitentiary for a term of 2y2 years.

The information charges that the defendant, Hubert Smith, on or about the 10th day of February, 1925, did take, steal, and carry away a certain set of heavy leather work harness, of the value of $66, the personal property of L. R. Mitchell.

The main question presented is whether or not the evidence was sufficient to sustain the verdict.

The testimony on the part of the state, which was all the testimony offered in the case, shows or tends to show the following facts:

The complaining witness, L. R. Mitchell, lived on a farm a mile west of Cordell. On the afternoon of the 10th day of February, he bought a set of heavy work harness from a hardware store in Cordell and took it home that evening, and it was stolen out of his barn that night. A few days-later D. H. Hill, an officer of Cleveland county, went to the home of Albert Baker, near the town of Moore, and there ,found two sets of stolen harness which he took and delivered to the sheriff at Norman. On the 27th day of February, L. R. Mitchell identified one set of this harness as his property. The other set was identified by Hubert Wells as his property, stolen from his place near Cordell on the night of the 29th day of January; that the defendant, Hubert Smith, and Frank Simpson brought the Mitchell harness to the Baker place on the morning of February 11th, and brought the Wells-harness to the Baker place on the morning of January 30th.

As a witness for the state, Frank Simpson testified that he lived in Washita county at that time and the defendant, Smith, lived at Oklahoma Gity, and that they were both at Cordell when Mr. Mitchell bought the harness, and together they went to Mitchell’s place that night and took the harness and carried it to Albert Baker’s place near the town of Moore and delivered it to Albert Baker’s boy; that in the last days of January they left Cordell and went to Hubert Wells’ place, near Cordell, and took a set of harness and carried the same to Albert Baker’s place near the town of Moore; that before either harness was stolen the defendant, Smith, told the witness that he had a man that would 'buy stolen harness from them and would keep his mouth shut.

On cross-examination, he admitted that he had served a term of 6 months in the state penitentiary, that he testified for the state because he had been promised it would be lighter on him.

Mrs. Angaleigh Baker testified that in the months of January and February, this year, she was living at the home of her father-in-law, Albert Baker, near the town of Moore; that the defendant, Hubert Smith, and Frank Simpson came there together with a set of harness, and about 2 weeks later they came again and brought another set of harness; that they arrived there early in the morning.

At the close of the- evidence for the state, the defendant moved for a directed verdict of acquittal on the ground “that there is no corroboration of the accomplice, Frank Simpson.” The motion was overruled.

The contention of plaintiff in error is that he was convicted upon the uncorroborated evidence of an accomplice.

The testimony of witness Mrs. Baker, which is undisputed, shows that the defendant and the accomplice were in possession of the stolen property within a few hours after it was stolen.

The possession of property recently stolen is evidence against the accused, which, like all other evidence, is to be taken and considered by the jury -in connection with the other evidence in the case.

Mr. Bishop says:

“When the fact of a theft has been shown, and the question is whether or not the defendant committed it, his possession of the stolen goods, either sole or joint with others, at a time not too long after, the stealing, is a circumstance for the jury to consider and weigh in connection with the other evidence. Its significance will vary with its special facts, and with the other facts of the case, among which are the nearness or remoteness of the proved possession to the larceny, the nature of the thing as passing readily from hand to hand or not, what explanations he made on it being discovered that he had the goods, together with such other facts as ought reasonably to influence a juror’s opinion.” 2 Bish. New Cr. Pro. par. 740.

When a conviction is sought on the testimony of an accomplice, there must be competent corroborative evidence tending to connect the defendant with the commission of the offense charged (section 2701, C. S. 1921), and when there is such corroborative evidence its weight and effect is a matter for the jury to determine (Campbell v. State, 12 Okla. Cr. 349, 157 P. 49; Martin v. State, 12 Okla. Cr. 510, 159 P. 940).

It is also a well-settled rule that evidence corroborative of an accomplice need not directly connect the defendant with the commission of the crime; it is sufficient if it tends to connect him with its commission. Moody v. State, 13 Okla. Cr. 327, 164 P. 676.

It follows that the motion for a directed verdict of acquittal was properly overruled.

The only other assignment of error is based upon the action of the court in admitting, over the objections of the defendant, evidence showing that he had been guilty of an offense other than the one charged-in the information.

Generally speaking, evidence of other crimes is competent to prove the specific crime charged when it tends to establish a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other or to connect the defendant with the commission of the crime charged. To be competent and admissible, it must have some logical connection with the offense charged.

Evidence covering the commission of another offense is also admissible when two crimes are so linked together in point of time or circumstance that one cannot be fully shown without proving the other.

Evidence tending to show design or plan to commit the crime charged is admissible, although it may have tended to show defendant guilty of a separate offense. Kennedy v. State, 25 Okla. Cr. 306, 220 P. 61; State v. Rule, 11 Okla. Cr. 237, 144 P. 807; Montgomery v. State, 13 Okla. Cr. 653, 166 P. 446; Vickers v. United States, 1 Okla. Cr. 452, 98 P. 467.

The record also shows that the court instructed the jury as to the purpose for which they might consider such evidence in this case.

Upon a consideration of the whole case, no reversible error is found and the judgment of the court below is affirmed.

EDWARDS and DAVENPORT, JJ., concur.