text:
    HENRY CAMPBELL v. STATE.
    No. A-3746.
    Opinion Filed May 3, 1922.
    (206 Pac. 622.)
    (Syllabus.)
    1. Trial — Purpose ofi Evidence — In Rape Case Evidence of Force to be Considered Only 'Affecting Prosecutrix’s Credibility and to Show that the Act was,Committed. In an action charging statutory rape perpetrated on a female under the age of 16 years, where the abused female and others were permitted to testify in detail that the act may have been accomplished by force and violence and against her will, such evidence should be considered only for the purpose of affecting her credibility as a witness and as tending to show that the sexual act was indeed committed, as charged, and not for the purpose of establishing rape by means of force.
    2. Evidence — Entries! in the Family Bible not Primary Evidence of Birth Dates Where Declarants Are Alive. Memoranda entries in a family Bible, showing the dates of births, marriages, and deaths, where the declarant is alive and in court or within reach of its process, is not primary evidence of such dates. Under such circumstances, the best evidence is the testimony of the father or mother or other declarant.
    3. Evidence — Trial—Jury as Judges of Weight of Evidence — Greater Probative Force May Be Given to Records Than to Witness’ Memory. The jury in the first instance are the sole judges of the weight of the evidence, unhampered by instructions of the court on that subject; but trial judges, where the sufficiency of the evidence is challenged, and this court, where that issue is involved, may, as a matter of law, give greater probative force to record evidence than to the mere recollection and memory of witnesses.
    An enumeration of school children, as provided for by section
    4. Same — School Records of Ages Held Entitled to Greater Probative Faroe Than Recollection of Acquaintances and Relatives. 7773, R. L. 1910, and other portions of the school laws of this state, constituting an official public record, when reviewed by a court on the question of the sufficiency of the evidence upon the matter of age, is entitled to greater probative force than the recollection of acquaintances and relatives.
    Appeal from District Court, Payne County; Arthur R. Swank, Judge.

      Henry Campbell was convicted of rape in tbe second degree, and sentenced to one year’s imprisonment in the state penitentiary, and he appeals.
    Reversed.
    Robert A. Lowry, Lowry & Moore, L. B. Robinson, W. E. Rice, and Henry S. Johnston, for plaintiff in error.
    The Attorney General, for the State.
   BESSEY, J.

Henry Campbell, plaintiff in error, in this opinion referred to as the defendant, was, by information filed in the district court of Payne county on June 7, 1919, charged with statutory rape, committed June 1, 1919, upon the person of Pearl McVey, a female under the age of 16 years. At the trial, on September 8, 1919, the jury rendered a verdict finding the defendant guilty of rape in the second degree, as charged, and assessing his punishment at imprisonment in the state penitentiary for one year. Later a motion for a new trial was filed and overruled, and a judgment in accordance with the verdict was rendered on October 6, 1919. From this judgment and sentence, defendant appeals.

Under the allegations of the information in this case, it was necessary for the state to show that Pearl McVey was under the age of 16 years on June 1, 1919. To support this claim, Andrew McVey, her father j and Cordie McVey, her mother, produced on the witness stand, over the objections of defendant, a family Bible containing a record of births, marriages, and deaths of the McVey family, which was introduced in evidence and marked state’s Exhibit D. A portion of this record was as follows: “Pearl McVey, Born June 18, 1903.”

According to the testimony of the father and mother, this entry was made in this family record by an uncle in their presence, soon after the birth of the child. This record was introduced over the objections and exceptions of counsel for defendant, on the ground that the record appeared to have been altered and that it was not the best evidence of the age of Pearl MeVey; that at most it was but a memorandum, which could be used only for the purpose of refreshing the recollection of these witnesses.

This Bible exhibit shows that the figure "3” of the date “1903” may have been altered, as it appears to have been written with different ink and a different pen than the other figures, and it appears further that there may have been an erasure at this part of the record.

The defendant introduced an official public record from the office of the county superintendent of public instruction, subscribed and sworn to by Cordie MeVey, the mother, showing that Pearl MeVey was born on June 18, 1902. Other records of this character made at different times, showing the date of her birth to be June 18, 1902, were called to the attention of the mother. She admitted that such records existed, but denied that they were correct and insisted that her daughter’s true age was as it appeared in the family Bible record.

The testimony on the part of the state indicated that the abuse perpetrated upon this female may have been accomplished by force and violence, against her will and utmost resistance, and that she was a girl of previous chaste character; and the jury may have believed this evidence and rendered its verdict upon this theory. But, under the information in this case, charging rape in the second degree, upon a female under the age of 16 years, the questions of whether or not the act was committed against the will of Pearl MeVey and whether or not she resisted to the utmost, and whether or not she was a girl of previous chaste character were not at issue.

Memoranda entries in a family Bible, showing the dates of births, marriages, and deaths, where the declarant is alive and in eonrt or witbin reach of its process, is not primary evidence of such dates. Under such circumstances, the best evidence is the testimony of the father or mother or. other declar-ant. Swartz v. State, 6 Okla. Cr. 590, 120 Pac. 1029; People v. Mayne, 118 Cal. 516, 50 Pac. 654, 62 Am. St. Rep. 256; People v. Sheppard, 44 Hun (N. Y.) 565; Robinson v. Blakely, 4 Rich. (S. C.) 586, 55 Am. Dec. 703; Campbell v. Wilson, 23 Tex. 252, 76 Am. Dec. 67.

In this ease, the testimony given by the mother as to the age of the daughter, at different times and places, was inconsistent and contradictory. At the preliminary examination, she testified that the time intervening between the birth of Pearl McVey and the child next younger was a little less than two years, while, according to the record appearing in the family Bible, the time intervening between these two births was only about eight months.

Where there is a public record kept, as provided by law, as in this case an enumeration of school children, provided for by section 7773, R. L. 1910, and other portions of the school laws of this state, showing the name, sex, and date of birth, such a record as to age, when reviewed by a court on the sufficiency of the evidence, is entitled to greater probative force than the recollection of relatives or other interested persons, Such records are made at a time , when there is no reason or temptation to falsify, and are kept in the custody of disinterested officers. In this case duplicate copies were lodged with the county superintendent of public instruction and the county clerk, making subsequent alterations practically impossible. On the contrary, a family Bible is usually found in possession of persons who are interested and who have the opportunity and sometimes the disposition to make alterations to subserve selfish purposes and designs.

We adhere to the often reiterated rule of this court, that the jury are the sole judges of the credibility of the witnesses and the weight of the testimony, and that, in this and all other eases, it would be improper for the trial court to instruct the jury on the weight to be given to any particular testimony introduced, or to instruct the jury as to its probative character as compared with other testimony. However, it becomes necessary for the trial court, in the consideration of a motion for a new trial, attacking the sufficiency of the evidence; and for this court, in passing upon the same issue, to determine the comparative probative force of these two classes of testimony. Subdivision 6, § 5937, R. L. 1910; Graham v. State, 12 Okla. Cr. 84, 152 Pac. 136; Waide v. State, 13 Okla. Cr. 165, 162 Pac. 1139.

Upon the necessary review of this evidence by the trial court, on the motion for a new trial on the ground of the insufficiency of the evidence, and by this court upon the same issue, we hold that the several public records in taking the school census of the district in which Pearl McVey was a pupil, designating the age of Pearl McVey, should control, unless overcome by other evidence of the most convincing character; and that the evidence of the family Bible record, which might tend to impeach these public records in this case, entirely lacks such probative force, for the reason that the Bible record was secondary evidence and appears to have been altered for the purpose of this trial. For the insufficiency of the evidence, a new trial should have been granted by the cour^ below. This principle was well stated in the case of Denoyer v. Ryan (C. C.) 24 Fed. 77, in which the date and legitimacy of a birth were at issue. The court, sitting as a court of equity, held that the public record kept by the parish priest was entitled to greater weight than the declarations of relatives. In commenting upon the law relating to public records in Lower Canada, the court said:

"It was tbe duty of Antoine Denoyer, when tbe child was presented for baptism, to declare tbe date of birth, and tbe names and occupations, etc., of tbe father and mother, and it was tbe duty of tbe priest to mate tbe entry. The parents, if present, and sponsors were required to sign tbe record, and if any of them could not sign their names, mention of that fact was required by law to be made in tbe entry.- This record, therefore, raises a presumption that tbe Isaie who lived with, and was brought up in, tbe family of Antoine, was bis legitimate offspring, and overcomes all tbe oral evidence of witnesses of tbe declarations and admissions of Stephen Denoyer and others.” Section 5115, R. L. 1910; Bradshaw v. State, 18 Okla. Cr. 619, 197 Pac. 715; Chas. Page et al. v. Sallie Atkins et al., 86 Okla. 290, 208 Pac. 807.

Other assignments of error have been urged in defendant’s brief, but need not be noticed here, for the reason that the errors mentioned are decisive of this case.

Tbe cause is therefore reversed and remanded.

DOYLE, P. J., concurs.

MATSON, J., concurs in tbe conclusion.


source: Caselaw Access Project

author: BESSEY, J.

license: Public Domain

text:
    CHARLIE CARTER v. STATE.
    No. A-3734.
    Opinion Filed May 8, 1922.
    (206 Pac. 539.)
    (Syllabus.)
    1. Conti nuance^-Facts Recited In Agreed Statement for Continuance Not an Admission of Defendant’s Innocence. The facts recited in an agreed statement of facts in an affidavit for a continuance did not amount to an admission of .the innocence of the accused, and were not inconsistent with the verdict of guilty.
    2. Trial — Instruction on Reasonable Doubt — Sufficiency. Instructions as to presumption of innocence examined, and held sufficient.

      Appeal from District Court, Stephens County; Cham Jones, Judge.
    Charlie Carter was convicted of the larceny of a hog, and he appeals.
    Affirmed as modified in matter of punishment.
    Bond & Kolb, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   BESSEY, J.

Charlie Carter, plaintiff in error, herein referred to as the defendant, was by information filed in the district court of Stephens county on July 16, 1919, charged with the larceny of a hog, the property of J. C. Forth, on July 11, 1919. On October 8, 1919, a verdict of the jury was rendered, finding the defendant guilty as charged and assessing his punishment at confinement in the state penitentiary for four years. A motion for a new trial was filed and overruled, and judgment was rendered according to the verdict on October 13, 1919. From this judgment defendant appeals.

The evidence on the part of the state was to the effect that the defendant and Claude Harmon were residents of Marlow, in Stephens county, and that they had been acquaintances for five or six years; that defendant’s occupation was that of a service car driver; that on the evening of July 11, 1919, while they were sitting together in the car belonging to the defendant, defendant proposed to Claude Harmon that, if Harmon would help him steal a certain hog there in town that night and carry it over to Lawton, they would there sell the hog and divide the proceeds, two-thirds to the defendant and one-third to Harmon; that he finally agreed to the proposal and defendant procured a crate from the premises of his brother, and at about 11 o’clock that night the two of them took this crate to the hog lot of J. C. Forth, put one of his bogs into tbe crate, loaded it into tbe defendant’s car, and drove to Lawton, arriving there about daylight. The bog was there placed in tbe railroad stock pen, and a few hours later Harmon sold tbe bog to tbe proprietor of a Lawton meat market, receiving therefore a check in tbe amount of $27.20. Tbe cheek was cashed by Harmou at tbe bank, and tbe money delivered to tbe defendant, who returned to Harmon $9.10. A little later both parties were placed under arrest for tbe theft of tbe bog and were put in the county jail at Duncan. They were charged jointly with tbe crime. Harmon pleaded guilty, and was used as a witness against this defendant.

Tbe defendant took tbe stand in bis own behalf, and claimed that bis only connection with tbe affair was bis employment by Harmon to convey tbe bog to Lawton, that Harmon bad informed! him that be was moving to Lawton, and that tbe bog belonged to him, and that defendant bad no knowledge that it was stolen property.

Without reciting tbe evidence in detail, tbe testimony of tbe state’s witness Harmon, an accomplice, was corroborated in many material particulars.

There are but two assignments of error urged in defendant’s brief.

First it is claimed that this conviction should not be allowed to stand, because it is inconsistent with tbe admissions of the state growing out of tbe application of tbe defendant for a continuance. It seems that earlier in the day on which this bog was stolen one Orbie Pope bad also been solicited by Harmon to haul a bog to Lawton. Tbe defendant in bis affidavit in support of his motion for a continuance stated that Orbie Pope was a material witness for tbe defendant; that be was sick and unable to attend the trial; that this witness, if present, would testify that he was present at tbe preliminary bearing in this case, and that immediately after the hearing he, Orbie Pope, had a conversation with Claude Harmon, the state’s witness, in which he said to Harmon:

“I would have gotten into trouble by having you accuse me of being an accomplice in the theft of a hog if I had hauled you and the hog over to Lawton, as you wanted me to do.”

To this remark made by Pope, Harmon replied in substance that he would not have accused Charlie Carter of being an accomplice in the larceny of the hog if Carter had made his bond for him, as requested, but that Charlie Carter had refused to make his bond. Upon consideration of this motion for a continuance the county attorney said:

“I admit that he (Orbie Pope) would swear that if he were here.”

Mr. Bond, for the defendant, thereupon dictated into the record the following:

“Thereupon before ruling on the motion by the court the county announces that the state would admit that the prosecuting witness made the statements contained in the motion for a continuance and would further admit that the same were and are true.”

As we view this admission, it amounts simply to an admission as to what Claude Harmon would have clone, or would not have done, if Charlie Carter had made bond for him. There is no admission that Carter in fact had nothing to do with the theft of the hog. The inference may well be drawn from the statement and all the surrounding circumstances that Harmon would have aided Carter in shielding himself if the bond had been made.

The defendant next complains of instruction No. 11, as follows:

“You are instructed, that the defendant claims as a matter of defense that he was employed by the witness Harmon to haul the hog from Marlow to Lawton. In this connection you are instructed that, if you should believe or if you should entertain a reasonable doubt as to whether or not he was so employed it would be your duty to resolve such doubt in his favor and acquit him.”

It is urged that this instruction places the burden of proof upon the defendant, and is therefore prejudicial. This instruction may be paraphrased as follows:

“In this connection you are instructed that, if you should believe he was so employed, you should acquit him, or, if you should have a reasonable doubt of that fact, you should acquit him.”

As we construe the instruction, it does not import a shifting of the burden of proof. The expression “whether or not” was inaptly used, but in our judgment was not prejudicial. The court in effect said- that, if they should have a reasonable doubt that he was innocently employed to transport the hog, they should acquit him. If the defendant desires to stress the alternative word “not,” then the instruction would mean that, if they entertained a reasonable doubt that the defendant was not so employed, he should be acquitted. By either or both constructions the court told! the jury to acquit. Construing this expression in the way the defendant insists it should be construed it is equivalent to saying to the jury that, if they had any doubt upon the question one way or the other, they should acquit him. That being true, defendant has no cause for complaint.

Defendant cites in support of his claim that this instruction deprives the defendant of his presumption of innocence the following cases: Remillard v. State, 10 Okla. Cr. 438, 133 Pac. 1132, 137 Pac. 370; Lockhart v. State, 10 Okla. Cr. 582, 139 Pac. 1156; Wood v. State, 11 Okla. Cr. 176, 144 Pac. 391; Courtney v. State, 12 Okla. Cr. 169, 152 Pac. 1134; Smith v. State, 12 Okla. Cr. 489, 159 Pac. 668; Findley v. State, 13 Okla. Cr. 128, 162 Pac. 680; Kiggins v. State, 15 Okla. Cr. 306, 176 Pac. 413; Slate v. State, 15 Okla. Cr. 201, 175 Pac. 843; Adair v. State, 15 Okla. Cr. 619, 180 Pac. 253.

We have examined the authorities above cited, and are of the opinion that the instruction here complained of is not similar to any of the instructions treated in these cases. We do not hold that the instruction in this case is a model instruction, upon the question therein treated, but that by every fair in-tendment it could not have operated to the prejudice of the defendant.

It seems that this defendant was less at fault than his co-defendant. Under the circumstances we think the punishment assessed was excessive, and the term of punishment is therefore modified from four to two years in the penitentiary, and affirmed as modified.

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


author: MATSON, J.

text:
    Ex parte C. B. WOOD.
    No. A-4271.
    Opinion Filed May 6, 1922.
    (206 Pac. 541.)
    (Syllabus.)
    Habeas Corpus — Not Invocable to Discharge Petitioner on Ground of Former Jeopardy — Remedy by Appeal. The writ of habeas corpus cannot be resorted to for the purpose of discharging a petitioner on the ground of former jeopardy. Such plea must be" presented and tried in the court having jurisdiction to try the offender on the charge for which he is in custody, and, if the decision of such court is thought erroneous, the remedy is by appeal and not by habeas corpus.
    Application by C. B. Wood for writ of habeas corpus seeking release from restraint and imprisonment in the county jail of Ottawa County, by Neil Harr, sheriff of such county.
    Writ denied.
    Cus Seawell and F. W. Church, for petitioner.
    O. F. Mason, Co. Atty., and R. E. Wood, Asst. Atty. Gen., for respondent.
   MATSON, J.

On the 31st of March, 1922, petitioner C. B. Wood filed in this court a duly verified petition and application for a writ of habeas corpus, alleging: That he is unlawfully restrained of his liberty and imprisoned in the county jail of Ottawa county, at Miami, Okla., by Neil Harr, sheriff of said county. That the cause of said restraint, according to the best of petitioner’s knowledge and belief, is that, on and prior to the 3d day of February, 1922, petitioner was in the custody of said sheriff and restrained in said jail upon a warrant on an information charging him with the crime of murder, alleged to have been committed by him and others, to wit, William Hawkins and Joe J. Lynch, by killing one 0. B. Van-derpool in said county, and that, on the day and date aforesaid, defendant was put on trial in the district court of said Ottawa county, upon said charge, and, upon his plea of not guilty thereto, a jury was duly impaneled and sworn, and, after hearing all the evidence and instructions of the court and argument of the counsel, said jury retired in charge of sworn bailiffs to consider their verdict, and defendant was, by order of said court, remanded to the custody of said sheriff, and by said sheriff returned to and placed in the jail of said county. That, while so confined and without his knowledge or consent, said jury was discharged from further deliberations on their said verdict by reason of their failure to agree. That by reason of the proceedings aforesaid, had and done in the absence of said petitioner and while so confined and restrained in said county jail, he was thereby acquitted of said charge and became thereby entitled to be discharged from the custody of said officer and to be released from said jail, and that be is not beld in custody or confined in said jail on any other or different charge than the one herein set out. That petitioner has made application to the district court of said Ottawa county for his discharge, upon the grounds and for the reasons herein set out, and his petition for said discharge has been denied by said court and petitioner remanded to the custody of said sheriff and reconfined in said jail. That, by reason of the matters and things hereinbefore set out, petitioner is illegally restrained of his liberty and unlawfully imprisoned in said jail. A copy of the information and a copy of the order discharging said jury and a copy of the petition filed in the district court and the order thereon, together with affidavits in support of the allegations of this petition, are attached to the petition and made a part thereof.

The petition was demurred to by counsel for respondent, and the application was presented to this court, both by brief and oral argument. This is a resort to the writ of habeas corpus for the purpose of discharging the petitioner on the ground of former jeopardy, in that the discharge of the jury in the former trial, in his absence and while he was confined in jail and without his consent or knowledge, was an acquittal of the said charge on which he is now held and entitles him to the relief prayed for.

The writ is denied. The general rule is that all questions which may arise in the orderly course of a criminal prosecution are to be determined by the court to whose jurisdiction the defendant has been subjected by law, and the fact that the defendant has a good and sufficient defense to a criminal charge on which he is held will not entitle him to hi's discharge on habeas corpus. Former jeopardy must be pleaded in bar in the trial court, andl the writ of habeas corpus cannot be resorted to for the purpose of discharging a petitioner on this ground. If, after sueb plea bas been presented and tried in the court having jurisdiction to try the offender, the decision of such court is thought to be erroneous, the remedy in this state is by appeal and not by habeas corpus. Ex parte Johnson, 1 Okla. Cr. 286, 97 Pac. 1023, 129 Am. St. Rep. 857; 12 R. C. L. § 24, p. 1206, and cases cited in note 10; Ex parte Bigelow, 113 U. S. 328, 5 Sup. Ct. 542, 28 L. Ed. 1005; Ex parte William Belt, 159 U. S. 95, 15 Sup. Ct. 987, 40 L. Ed. 88; Perry v. State, 41 Tex. 488; Ex parte Crofford, 39 Tex. Cr. R. 547, 47 S. W. 533; Church on Habeas Corpus (2d Ed.) § 253, p. 354, and cases cited.

DOYLE, P. J., and BESSEY, J., concur.


author: PER CURIAM.

text:
    F. L. HUFF v. STATE.
    No. A-3930.
    Opinion Filed May 12, 1922.
    (206 Pac. 1117.)
    Appeal from District Court, Jackson County; Frank Math-}ws, Judge.
    F. L. Huff was convicted of a felonious assault, and he ippeals.
    Appeal dismissed.
    Edwin Dabney and P. K. Morrill) for plaintiff in error.
    George F. Short, Atty Gen., and N. W. Gore, Asst. Atty. 3en., for the State.
   PER CURIAM.

Plaintiff in error, F. L. Huff, was tried and convicted, and his punishment fixed at imprisonment in ;he penitentiary for two years, upon an information charging ;hat in Jackson county on the 23d day of March, 1920, he did shoot one Jesse Tipton with intent to kill. From the judgment rendered on the verdict an appeal was duly perfected, oy filing in this court on March 7, 1921, a petition in error with ease-made. Plaintiff in error by his counsel of record las filed' a motion to dismiss his appeal, with request that mandate issue forthwith. The motion to dismiss said appeal is sustained and the cause remanded to the trial court, with direction to cause its judgment and sentence to be carried into execution. Mandate forthwith.


author: DOYLE, P. J.

text:
    GEORGE FERBRACHE v. STATE.
    No. A-3840.
    Opinion Filed May 13, 1922.
    (205 Pac. 617.)
    (Syllabus.)
    1. Rape — Evidence Insufficient to Sustain Conviction in First Degree. In a prosecution for rape in the first degree, evidence reviewed and held insufficient to support the verdict and judgment of conviction.
    2. Same — Insufficiency of Evidence — Contradictory Testimony oi Prosecutrix. Under the laws of this state, conviction for rape maj be had on the uncorroborated testimony of the prosecutrix; bul when her testimony is contradictory, and the defendant testifies and denies specifically the testimony of the prosecutrix, and his testimony is corroborated, the testimony of the prosecutrix standing alone, is not sufficient to warrant a conviction.
    3. Witnesses — Credibility of Prosecutrix in Rape Case Impeachec by Proof of her Statements Contrary to Testimony. In a prosecution for rape, the credibility of the prosecutrix may be impeached by proof that she has made statements relevant to the issues contrary to what she has testified to on the trial.
    Appeal from District Court, Harper County; A. G. Sutton Judge.
    George Ferbrache was convicted of rape in the first de gree, and be appeals.
    Reversed.
    W. H. Springfield and B. F. Willett, for plaintiff in error
    George F. Short, Atty. Gun., and R. E. Wood, Asst. Atty Gen., for the State.
   DOYLE, P. J.

This appeal is from a judgment of conviction for rape in the first degree and sentence of imprison

Upon tbe whole case, we find that the evidence is not sufficient to sustain the conviction.

For the reason stated, the judgment appealed from is reversed.

MATSON and BESSBY, JJ., concur.


text:
    EARL BLANCHARD et ux. v. STATE.
    No. A-3842.
    Opinion Filed May 27, 1922.
    (207 Pac. 96.)
    (Syllabus.)
    1. Depositions — Statutory Procedure Mandatory. Depositions in criminal cases were unknown to the common law. The authority trial courts o£ this state have in permitting depositions of nonresident witnesses to be taken in criminal cases is derived from the statute, and neither the defendant nor the state is required to consent to the taking of such depositions in any other mode than that prescribed by the statute.
    2. Same — Stipulations—Consent by County Attorney to Use of Nonresident Witnesses’ Depositions Illegally Taken. The county attorney, on behalf of the state, may consent to the use as evidence of depositions of nonresident witnesses taken without a commission having been issued.
    3. Same — Motion to Suppress Made Too Late. Where the county attorney stipulates that defendant may take in his behalf depositions of nonresident witnesses without the issuance of a commission, and that such depositions may be read at the trial, a motion to suppress the depositions as a whole, made for the first time when the depositions are offered in evidence, comes too late and should be overruled. For reasons for so holding, see body of opinion.
    Appeal from District Court, Ottawa County; S. C. Fullerton, Judge.
    Earl Blanchard and Mrs. Earl Blanchard were convicted of murder and sentenced to life imprisonment, and they appeal.
    Reversed and remanded.

      Blanton & Shannahan, Dennis H. Wilson, J. J. Smith, A. W. Turner, Arthur 6. Croninger, and Pruiett, Sniggs, Patterson & Morris, for plaintiffs in error.
    The Attorney General and E. L. Fulton, Asst. Atty. Gen., for the State..
   MATSON, J.

On the 14th day of January, 1920, the county attorney of Ottawa county filed in the district court of said county an information jointly charging Earl Blanchard and Mrs. Earl Blanchard with the murder, by shooting, of Charles Strieker, on the 22d day of October, 1919.

The killing occurred in the city of Commerce, in Ottawa county, at nighttime'; the deceased being a police officer of said county. On the night of the tragedy an automobile belonging to a citizen of Miami, Okla., located four miles south of the city of Commerce, was stolen from a place on the public streets of said city. The stolen car was driven north to the city of Commerce, and the killing of the deceased occurred while the stolen car was being driven through the city of Commerce and while the deceased was trying to compel the thief to stop the car in a public street in the city of Commerce; the fatal shot being fired by an occupant of the car. The defendant Earl Blanchard was identified by some of the witnesses as the person who fired the fatal shot. Some witnesses also testified that the defendant Mrs. Earl Blanchard was riding in the car with the defendant at the time the fatal shot was ■ fired, but there is no evidence in the record that she fired any shots at the deceased or took any part in the killing, her only connection with the crime being that she was with her husband in the city of Miami that day prior to the larceny of the automobile and was riding with him in the stolen car after it was stolen, and was also seen with him in the city of Joplin, Mo., the next morning after the commission of the homicide; and she was also identified by a chauffeur of a service car wbo testified be drove tbe defendants from Joplin, Mo., to tbe town of Carthage, Mo., on tbe next day after the homicide. Tbe defendants were residents of tbe city of Nevada, Mo., and thé defense relied upon was an alibi.

Among tbe assignments of error urged as grounds for á reversal of this case is the alleged error of tbe trial court in rejecting admissible, competent, relevant, and material testimony offered by tbe defendant at tbe trial, all over tbe objection and exception of each of tbe defendants. This ground for reversal is based upon tbe action of tbe trial court in excluding certain depositions of witnesses taken on behalf of tbe defendants in tbe state of Missouri at tbe cities of Kansas City and Nevada. These depositions were taken pursuant to stipulations enteréd into on tbe 21st day of February, 1920, between tbe county attorney of Ottawa county, acting through bis duly appointed and qualified deputy, and counsel for tbe defendants. Said stipulations read as follows:

’“Defendant’s Exhibit 1. In tbe District Court of Ottawa County, Oklahoma. State of Oklahoma, Plaintiff, v. Earl Blanchard and Yida Blanchard, Defendants. No. — . Stipulation to Take Depositions.
“It is hereby agreed by and between tbe plaintiff and the defendants that depositions of sundry witnesses may be taken on the part of tbe defendants at tbe law office of Blanton and Shannahan, 306 Keith & Perry Bldg., southwest corner of Ninth and Walnut streets, in tbe city of Kansas City, county of Jackson, state of Missouri, on Friday tbe 27th day of Febrcl-ary, 1920, between tbe hours of 8:00 o’clock in the forenoon and 6:00 o ’clock in tbe afternoon of that day and will be continued from day to day at tbe same place and between ihe same hours until completed.
“That said deposition may be taken in shorthand by a stenographer and transcribed in typewriting and tbe signatures of witnesses to said depositions are waived.
“That formal notice of the taking of said depositions as to time and place is hereby waived and it is agreed also that all objections to the materiality, competency, and relevancy of any of the questions or answers may be read at the trial of this canse at the time said depositions are read with the same force and effect as is made at the taking of the depositions and the filing of written objections is waived.
“Dated this the 21st day of February, 1920.
“Defendant’s Exhibit 2. In the District Court of Ottawa County, Oklahoma. State of Oklahoma, Plaintiff, v. Earl Blanchard and Vida Blanchard, Defendants. No. —. Stipulation to Take Depositions.
“It is hereby agreed by and between the plaintiff and the defendants that depositions of sundry witnesses may be taken on the part of the defendants at the law office of W. M. Bowker, Bowker building, northeast corner of the Public Square in the city of Nevada, county of Vernon, state of Missouri, on Wednesday, the 25th of February, 1920, between the hours of 8:00 o ’clock in the forenoon and 6:00 o’clock in the afternoon of that day, and that if the taking of said depositions is not completed on that day will be continued from day to day at the same place and between the same hours until completed.
“That said depositions may be taken in shorthand by a stenographer and transcribed in typewriting and the signatures of witnesses to said depositions are waived.
“That formal notice of the taking of said depositions as; to time and place is hereby waived, and it is agreed also that, all objections to the materiality, competency and relevancy of any of the questions or answers may be read at the trial of this cause at the time said depositions are read with the same force and effect as is made at the taking of the depositions and the filing of written objections is waived.
“Dated this the 21st day of February, 1920. D. H. Cotten, by W. R. Chestnut, Attorneys for State. Dept. Co. Atty. Horace Blanton and Bennett & Wilson, Attorneys for defendants.”

The depositions, after having been taken in accordance with the provisions of the foregoing stipulations, were duly-certified, sealed, and transmitted to the court clerk of Ottawa county and were on file in said court prior to the beginning of the trial, and no motion to suppress, or other objection, was urged to these depositions prior to the beginning of the trial. The defendants, believing that counsel for the state would give full faith and credit to the stipulations entered into, and relying upon such stipulations, announced that they were ready for trial. Let it here be understood that counsel for the state, pursuant to the notice contained in the stipulations and pursuant to the agreements therein, appeared at the times and places mentioned in the stipulations and cross-examined the witnesses whose depositions were taken.

The first objection, raised to the introduction and admission in evidence of said depositions was after the state had closed its case in chief and the said depositions were offered to be read in evidence in behalf of the defendants. The objections urged against the depositions were not objections to the materiality, competency, or relevancy of any of the questions or answers of any of the witnesses, but were objections to the introduction of any of the depositions as a whole and were in the nature of a motion to entirely suppress all the depositions taken. The trial court sustained the motion and objections to the introduction of the depositions, announcing that the decision of this court in the ease of Westbrook v. State, 14 Okla. Cr. 423, 172 Pac. 464, controlled. In effect, the trial court held that because the depositions were not taken strictly in conformance with the letter of the statute providing for the taking of depositions by a commission, of witnesses residing out of the state, on behalf of the defendants, the depositions were clearly inadmissible and the trial court was powerless to receive them in evidence.

In Westbrook v. State, supra, this court held:

“The right to take and use depositions of nonresident witnesses in behalf of the defendant in a criminal case is statutory. Penal Code, art. 17. The statute regulates the practice in such cases, and its provisions must be substantially complied with.”

In the body of the opinion it is said:

“Counsel for the defendant insist ‘that the court erred in refusing to grant to the defendant a commission to take depositions. ’
“The statutory provisions for the taking of depositions by the defendant in a criminal case are, in part, as follows:
“Section 6036, Rev. Laws 1910: ‘When an issue of fact is joined upon an indictment or information, the defendant may have any material witness residing out of the state examined in his behalf as prescribed in this article and not otherwise.
“ ‘Sec. 6037. When a material witness for the defendant resides out of the state the defendant may apply for an order that the witness be examined on a commission to be issued under the seal of the court, and the signature of the clerk, directed to some party designated as commissioner, authorizing him to examine the witness upon oath or interrogatories annexed thereto, and to take and certify the deposition of the witness and return it according to the instructions given with the commission.
‘ ‘ ‘ Sec. 6038. Application must be made upon affidavit, stating: First. The nature of the offense charged. Second. The state of the proceedings in the action and that an issue of the fact has been joined therein. Third. The name of the witness and that his testimony is material to the defense of the action. Fourth. That the witness resides out of the state.
“ ‘See. 6039. The application may be made to the court or judge himself, and must be upon five days’ notice to the county attorney.
“ ‘See. 6040. If the court or the judge to whom the application is made, is satisfied of the truth of the facts stated and that the examination of the witness is necessary to the attainment of justice, an order must be made that a commission be issued to take his testimony, and the court or judge may insert in the order a direction that the trial be stayed for a specified time reasonably sufficient for the execution of the commission and return thereof, or the case may be continued.’
“Counsel for the state contend that under section 6040, above quoted, the issuance of a commission to take the deposition of a nonresident witness rests in the discretion of the trial court or judge, and that no abuse of discretion appears in this case.
“From the record it appears that the defendants, on the day they entered their pleas, served notice on the county attorney that they would make application to take the deposition of a nonresident witness, which application was supported by their affidavits, averring the facts required to be shown under the statute. The county attorney offered to waive notice and the issuance of a commission, and offered to appear at any time to take the deposition of said witness. Counsel for the defendants, very properly, we think, refused to accept this proposition. There is no inherent power in a court of record, to issue commissions to take depositions to be read in behalf of a defendant in a criminal case. The right to take and use the deposition of a nonresident witness in behalf of a defendant in a criminal case is statutory, and the procedure prescribed for taking and returning the same must be substantially complied with in order to make such deposition competent and admissible. We think the record shows a manifest abuse of judicial discretion in overruling the application of the defendants for a commission to take the deposition. In cases of this kind, where the defendant is on trial for his life, he should have the advantage of every right which the law secures to him upon his trial, and in a capital case, when notice is given and a proper affidavit for the taking of a deposition is made by the defendant and filed as soon as issue is joined by entering plea, it would be an abuse of discretion to deny an application properly made.”

In deciding tbe question involved in tbis case, which is materially different from that considered in the Westbrook Case, it is not necessary for this court to depart from the general principles of law concerning the inherent power of the trial court to permit the taking of depositions in a criminal •case in any other manner than by commission, as provided in •the Code of Criminal Procedure. Depositions in criminal cases were unknown to common law, and all the authority the trial courts of this state have in permitting depositions of nonresident witnesses to be taken in criminal cases must be derived from the statute, and neither the defendant nor the state ean be compelled by the court to consent to the taking of depositions in a criminal case in any other mode than that pre-•seribed by the statute.

Depositions taken in accordance with the provisions of the Criminal Code of Procedure are admissible in behalf of the -defendant. Such statute clearly authorizes the use of depositions of nonresident witnesses in behalf of the defendant in a .criminal ease. However, a question is involved in this appeal which was not considered nor passed upon by the court in the Westbrook Case. The question here involved is whether or not the county attorney may consent to the use as evidence of •depositions of nonresident witnesses taken without commission in behalf of a defendant as was here done, and, if so, should •such consent, where no timely objection is urged in the trial •court, be enforced. The doctrine is well established, and the principle is applicable to criminal as well as civil proceedings, that one should not complain of a thing done with his consent; however, this doctrine, like any other legal doctrine, is sometimes compelled to give way, because of the circumstances of the particular instance, to another of more compelling force which forbids its application. The decisions of this court are full of tbe application of tbe doctrine above announced. Some instances of it may be enumerated as follows: (1) Waiver of jury trial. (2) Waiver of preliminary examination. (3) Consent to tbe admission of secondary instead of primary evidence. (4) Failure to interpose timely objection to tbe admissibility of evidence or to tbe argument of counsel, or to tbe instructions of tbe court. (5) Waiver of copy of indictment or information. (6) Waiver of list of witnesses. (7) Waiver of time to plead or for judgment.

Bisbop says tbis law is analogous to tbe doctrine of estop-pel. Bishop’s New Criminal Procedure (2d Ed.) vol. 1, § 1Í7.

Applying the doctrines of waiver or consent, which are practically analogous, because waiver is based on consent either expressed or implied, to tbe question involved in tbe instant case, the conclusion is reached that, although the trial courts of tbis state have no inherent power to authorize tbe taking of depositions of nonresident witnesses of tbis state in criminal cases otherwise than in accordance with tbe statutory provisions, tbe statute having authorized tbe taking of depositions of nonresident witnesses in behalf of tbe defendant, such statute should not be construed to prohibit tbe use in behalf of a defendant of depositions taken by tbe concurrent consent of tbe accused and tbe prosecution, where no timely objection is made to suppress them.

Section 5882, Revised Laws 1910, of tbe Code of Criminal Procedure, in part, provides:

“Except as otherwise provided in tbis and tbe following chapter, tbe rules of evidence in civil cases are applicable also in criminal cases.”

There is nothing in tbe Criminal Code of Procedure providing tbe manner in which or time at which exceptions to depositions as a whole shall be made. In the absence of such .a provision, and because depositions in criminal actions were unknown to tbe common law, tbe following section, included witbin tbe Code of Civil Procedure, should control: Section •'5092, Id., on exceptions to depositions as a whole, reads as follows:

“Tbe court shall, on motion of either party, bear and decide tbe questions arising on exceptions to depositions as a ■whole, before tbe commencement of tbe trial.”

The stipulations entered into between counsel for tbe ■state and for tbe defendant as to tbe taking and use of depositions of nonresident witnesses in behalf of tbe defendant in this case, after waiving notice of tbe time and place of taking -these depositions, contain an agreement that—

“All objections to tbe materiality, competency and relevancy of any of tbe questions and answers may be read at tbe trial of this cause at tbe time said depositions are read.”

Such language constituted a consent on tbe part of tbe legally constituted representatives of the state in tbe trial of .■said cause, if not expressly, clearly by implication, that such depositions should be read in evidence at tbe trial. In tbe face of such an agreement, it was manifestly unfair to the defendant in this case for tbe state’s counsel to remain silent before tbe commencement of tbe trial and permit tbe counsel for "the defendant, relying upon said depositions and their use at tbe trial, to announce ready for trial, if it was their intention thereafter to take any exceptions to the depositions as a whole. ‘Such action on tbe part of tbe state’s counsel was clearly contrary to the stipulations, and, in tbe light of tbe foregoing ■provisions of our Code of Procedure, amounted in our opinion to an unfair advantage, and we believe, in this instance, ■deprived the defendant of that fair and impartial trial which it is tbe purpose of our Constitution and statutes to afford an ;accused, and which substantial right this court has always been zealous to protect. In tbis state the county attorney is the legal representative of the state in all prosecutions on behalf of the state in the trial courts of record. He has authority to bind the state by agreements as to criminal procedure, not directly in conflict with the plain constitutional and statutory provisions, as much so as the counsel representing the accused can bind him to such an agreement. State v. Murphy, 48 S. C. 1, 25 S. E. 43.

In Wightman v. People, 67 Barb. (N. Y.) 44, it was held that an accused might consent to the admission of a deposition taken de bene esse before the trial in his presence and with his consent, though the statutory formalities had not been complied with.

In People v. Grundell, 75 Cal. 301, 17 Pac. 214, it is held:

“A defendant, on trial for larceny, having appeared by counsel, and consented that the testimony of a deposing witness be taken down and read in evidence, cannot, upon the trial, object to the reading of such deposition on the ground that it does not conform to all of the provisions of the Penal Code relating to depositions.”

In the body of the opinion it is said:

"The prosecution also read in advance the deposition of one Rost, which was taken before Judge Belden in open court, and written down by the reporter of the court. Certain objections were taken to the mode of authentication of this deposition, and also that there was no proof that the witness could not be produced at the trial. It appears, however, that the defendant appeared by his counsel in open court, and consented that the ‘deposition of Ernes! Rost, a witness detained in custody to testify, may be taken; that the said testimony of the said witness be taken down by the shorthand reporter of this court, and the same may be by him hereafter written out, and said written notes of the direct and cross examination read in evidence upon the trial of said cause, with the same force and effect as if said witness were himself present and testifying.’ This was an express consent that this identical deposition should be read in evidence at the trial. There was no condition that it should be shown that the witness could not be produced. The deposition was taken as provided in the stipulation, and is to be governed by it, and not by the provisions as to depositions in the Penal Code. In this view the certificate was unnecessary.”

In Bishop’s New Criminal Procedure (2d Ed.) vol. 2, § 1206, p. 1029, it is stated that depositions for the defendant, either under statutes or by consent of the prosecuting officer, may be taken.

If the defendant in a criminal prosecution may waive his constitutional right to meet the witness against him face to face, under certain circumstances (see Bishop’s New Criminal Procedure (2d Ed.) vol. 2, § 1205, p. 1028), and consent that the deposition of an absent witness may be read against him (full opportunity for cross-examination having been afforded him), why may not the county attorney, as the legally constituted representative of the state, in a like prosecution and with like opportunities, be bound (however irregular his action may have been when viewed in the light of the statute on the subject) by his consent that depositions taken for the defendant in an irregular manner may be read at the trial. And further, where such consent is given, is not the doctrine of waiver applicable where such officer fails to object to depositions so taken at the appropriate opportunity?

In the case of Shutte v. Thompson, 15 Wall. 151, 21 L. Ed. 123, the Supreme Court of the United States, applying the principle of waiver, said the following:

"At the trial in the court below, the plaintiff offered to read in evidence the deposition of William Underwood, which had been taken in the cause, with the certificate annexed thereto, respecting the time, place and manner of taking it, and the court permitted the deposition to be read, though the defendant objected and excepted to such, permission. The decision of the court admitting the deposition is the first error assigned.
“The grounds of objection are stated specifically in the record. They are three in number. The first is that the deposition was not taken and certified by an officer authorized by the acts of Congress to take and certify a deposition, so that it may be read in evidence. The second is that it was taken without any affidavit of the cause or reason for taking it, and without any commission authorizing it. The third objection is that it was neither certified nor proved that the witness had been sworn to testify to the whole truth. No other reason for opposition to the reception of the deposition in evidence was stated in the court below, and no others are urged in this court. ’ ’
“It is to be observed that the objections are all formal rather than substantial. Still they are quite sufficient to require the rejection of the deposition, if there is nothing in the case to countervail their effect. The act of Congress of September 24, 1789 (1 Stat. at L. 88, sec. 30), authorizes the deposition of an ancient, or any infirm person (among others), to be taken de bene esse, when the testimony of such person is needed in any civil cause depending in any district in any court of the United States. The deposition may be taken before any justice or judge of any of the courts of the United States, or before any chancellor, justice or judge of a supreme or superior court, mayor or chief magistrate of a city, or judge of a county court or court of common pleas of any of the United States, not being of counsel or attorney to either of the parties, or interested in the event of the cause. The act further provides for notice to the adverse party, and enacts that every person deposing as aforesaid shall be carefully examined and cautioned and sworn or affirmed to testify the whole truth. It is also further enacted that the depositions taken shall be retained by the magistrate until he deliver the same with his own hand into the court for which they are taken, or shall, together with a certificate of the reasons of their being taken, and of the notice, if any, given to tbe adverse party, be by tbe magistrate sealed up and directed to tbe court, and remain under bis seal until opened in court. It must be. admitted tbat tbe deposition of Underwood was not taken in conformity witb these regulations. It does not appear that the witness was sworn to testify tbe whole truth. Nor does it appear tbat there was any certificate of tbe reasons why tbe deposition was taken. In addition to this, it was taken before a township justice, and not by any magistrate described in tbe act of Congress. But it is obvious tbat all tbe provisions made in tbe statute respecting notice to tbe adverse party, tbe oath of tbe witness, tbe reasons for taking tbe deposition, and tbe rank or character of tbe magistrate authorized to take it, were introduced for the protection of tbe party against whom tbe testimony of tbe witness is intended to be used. It is not to be doubted tbat be may waive them. A party may waive any provision, either of a contract or of a statute, intended for bis benefit. If, therefore, it appears tbat tbe plaintiff in error did waive his rights under tbe act of Congress — if be did practically consent that the deposition should be taken and returned to the court as it was — and if by his waiver be has misled bis antagonist— if be refrained from making objections known to him, at a time when they might have been removed, and until after tbe possibility of such removal bad ceased, be ought not to be permitted to raise tbe objections at all. If be may, be is allowed to avail himself of what is substantially a fraud. Parties to suits at law may assert their rights to tbe fullest extent; but neither a plaintiff nor a defendant is at liberty to deceive, either actively or passively, his adversary, and a court whose province it is to administer justice, will take care tbat on tbe trial of every cause neither party shall reap any advantage from bis own fraud.”

In tbe later case of Howard et al. v. Stilwell and Bierce Mfg. Co., 139 U. S. 199, 11 Sup. Ct. 500, 35 L. Ed. 147, it is said:

“Tbe points made against the deposition of Odell by counsel for plaintiffs in error are, tbat it was not taken under any provision of tbe Revised Statutes of the United States, and that section 914, Revised Statutes, relating to the adoption by the federal courts of the forms and modes of proceeding in civil causes in .the state courts, has no application to the present inquiry. It will be observed that these points do not relate to the competency of the witness whose deposition was taken, or to the admissibility of the evidence given in it, but are based solely on objections as to the form of the commission and the manner of taking the deposition. The record shows that the cause was at issue May 20, 1886. The commission to take the deposition of the witness Odell was signed January 4, 1887. Notice of the issuing of -the commission was served on the defendants, and they filed cross-interrogatories in the premises, at the same time making the following waiver: ‘We waive copy of interrogatories and consent that commission may issue upon the original, direct and cross-interrogatories. (Signed) Lindsley & McCormick, Atty’s for Defendants.’ As already stated, the deposition was filed in the case on the 22d of January, 1887, and opened, at the request of the attorney for the plaintiff, on the 5th of February,. following. The motion to suppress the deposition was not made until the 8th of February, when the ease came on for trial. In our opinion, the motion in this instance was too late. The counsel for defendants, by waiving copy of the interrogatories, when notice of them was served upon them, and consenting to the issue of the commission, and practically uniting with plaintiff’s counsel in executing it, by adding their own cross-interrogatories, and withholding the objections until after the trial had begun, must be considered as having waived such objections.”

See, also, Rich v. Lambert, 12 How. 347, 13 L. Ed. 1017; Sheibley v. Ashton, 130 Iowa, 195, 106 N. W. 618; Delisle v. McGillivary, 24 Mo. App. 680; Homberger v. Alexander, 11 Utah, 363, 40 Pac. 260; Com. v. Stone, Thacher, Cr. Cas. (Mass.) 604.

The doctrine of waiver is applicable here. The trial court erred to the prejudice of these defendants in suppressing the depositions as a whole upon objections made to them for the first time when the defendants offered them in evidence.

In justice to the count y attorney, it should be stated in this opinion that be made no objection at the trial to the introduction of the depositions offered on behalf of the defendant, and taken according to the terms of the stipulations entered into between him and counsel for the defendants. The objections urged to the admission of the depositions in evidence came from counsel privately employed to assist in the prosecution. i

It is further contended that the evidence is insufficient as to each of the defendants to sustain the conviction.

With this contention the court cannot agree. The evidence against the defendant Earl Blanchard is sufficient, but if, upon a retrial of this case, the state is unable to produce additional evidence against the defendant Mrs. Earl Blanchard, the prosecution as to her ought in justice to be dismissed. We discover no evidence against her sufficient to authorize her conviction as an accomplice in the killing of Strieker.

For reasons stated, the conviction as to each defendant is set aside, and the cause remanded to the district court of Ottawa county for another trial, and the warden of the state penitentiary is directed to surrender the defendants Earl Blanchard and Mrs. Earl Blanchard to the sheriff of Ottawa county upon proper demand.

DOYLE, P. J., and BESSEY, J., concur.


text:
    D. W. JOLLIFFEE v. STATE.
    No. A-3763.
    Opinion Filed May 27, 1922.
    (207 Pac. 454.)
    (Syllabus.)
    †. Evidence — When Witness’ Testimony at Preliminary Hearing May Be Introduced — Witness Imprisoned in Another State, Before the evidence taken at a former trial or a preliminary hearing can be introduced against the accused at the final trial it must appear that the witness is dead, insane, sick, or beyond the reach of the process of the court, and that the presence of the witness with reasonable, dilligence cannot be procured.
    a. Where such witness escapes from jail, and becomes a fugitive from justice, and is held in confinement to answer criminal charges in another state, in the absence of collusion it is not incumbent upon the state to make an effort to have such witness returned for final trial as a condition precedent to the introduction, of his evidence taken at a former hearing.
    b. If the officers of the court by collusion or agreement are responsible for the absence of such witness, his testimony taken at a former hearing should not be permitted to be used at the final trial.
    2. Larceny — Inadmissible Evidence of Value of Cattle at Another Time and Place. In a prosecution for the larceny of cattle, where the value of the cattle at the time and place of the theft is at issue, the purchase price of other cattle at distant places 30 days before or 30 days after the theft is inadmissible.
    3. Trial — Question for Court — Whether Witness is Accomplice-Instruction. Where it is admitted that, if the defendant is culpably implicated in the theft at all, the witness was an accomplice, the question of whether he was an accomplice is a question of law for the court, and not a question of fact for the jury, and the jury should be so instructed.
    4. Trial — Charge on Good Moral Character. An instruction relating to the previous good character of the defendant qualifiedly approved.
    5. Evidence — Accomplice Testimony — Insufficient .Corroboration. A conviction will be set aside where the state’s case rests almost wholly upon the testimony of an accomplice, corroborated only by circumstances not inconsistent with the innocence of the accused, amounting at most to a mere suspicion.
    Appeal from District Court, Nowata County; C. W. Mason, Judge.
    D. W. Jolliffee was convicted of cattle larceny, and be appeals.
    Beversed and remanded.
    Bert Yan Leuven, J. I. Howard, and A. M. Beets, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and E. L. Fulton, Asst. Atty. Gen., for tbe State.
   BESSEY, J.

D. W. Jolliffee, plaintiff in error, hereinafter referred to as tbe defendant, was by information filed in tbe district court of Nowata county, March 18, 1919, charged with tbe theft of 12 bead of cattle, the property of Marion Dawson. At tbe trial, November 4, 1919, tbe jury returned a verdict finding tbe defendant guilty as charged, without assessing tbe penalty. After a motion for a new trial was beard and overruled, on November 8, 1919, tbe court pronounced judgment upon tbe verdict, assessing tbe punishment at confinement in tbe state penitentiary at McAlester for a term of 7 years. Thereafter, on tbe 28th day of January, 1920, tbe defendant filed a motion for a new trial on tbe ground of newly discovered evidence, which motion was later by tbe court overruled. From tbe judgment and orders made tbe defendant appeals.

Tbe undisputed evidence is to tbe effect that Marion Dawson was tbe owner of tbe 12 bead of cattle involved in this action; that be bad resided at Wat ova in Nowata county for a number of years, during which time be bad been extensively engaged in grazing and raising cattle; that during tbe fall of tbe year 1918 be bad placed 140 bead of steers on premises belonging to Ocie Freeman; that Ocie Freeman was a negro, residing about a mile from tbe pasture or inclosure in which these cattle were running; that about tbe 3d day of December, 1918, Freeman discovered that tbe fence inclosing this pasture bad been broken down, and that some of tbe cattle bad escaped to tbe commons and lands adjacent; that Freeman had these cattle rounded up and driven back into tbe pasture, and tbe fence repaired, and upon counting tbe cattle found that 12 bead of steers were missing. Later be discovered' a place in tbe wire fence inclosing tbe pasture where there were indications that some posts had been pulled up and the fence laid on the ground, and cattle tracks and tracks of two horses were found, leading away from the pasture. Later these tracks were traced some miles distant, towards Coffeyville, Kan. Dawson and his employes made inquiry at Coffeyville, and found that H. D. Barnett, the owner of a meat market there, and an extensive dealer in cattle, had purchased these 12 head of cattle from A1 Spencer. It appears that the defendant Jolliffee was a son-in-law and associate or employe of Barnett in the buying and disposing of cattle; that he was for some time the chief buyer for the concern ; and that he negotiated the purchase of these 12 head of cattle. Four of the 12 head so purchased by Barnett had been slaughtered and the other 8 head had been placed in a wheat pasture of Barnett’s, along with a number of other cattle belonging to him. Upon inquiry by Dawson, Barnett exhibited the hides of the slaughtered animals, which were identified by Dawson by the brand used by him. Barnett then informed Dawson and his employe where the other 8 head could be found. Barnett, being satisfied that the cattle were stolen and belonged to Dawson, voluntarily turned them over to him.

The testimony of A1 Spencer is to the effect that he, assisted by one Hill, stole these cattle from the Freeman pasture the night before they were sold to Jolliffee, pursuant to a previous agreement with the defendant, and that the defendant met Spencer with the cattle about 5 miles south of Coffeyville, where he paid for them with a check of the amount of '$500, drawn on the account of Barnett; that Spencer, before reaching the Kansas line, turned and rode back towards Lenar pah. Later he appeared in Coffeyville, and, with the aid of the indorsement of an employe of Barnett, cashed the check given him by Jolliffee, Spencer was arrested soon afterwards for this and other thefts, and placed in jail in Nowata county. After the preliminary trial in this case, and! while the case against Spencer was pending, Spencer escaped from jail and fled to Kansas, where he committed other thefts, and fled to Colorado, being later apprehended in that state. He was then returned; to the Kansas authorities, where he was being held at the time of the trial of this defendant.

The main portions of the testimony of A1 Spencer taken at the preliminary hearing, constituting the foundation of the state’s claim that this defendant was an accomplice and implicated in the theft, are as follows:

Examination by State.
“Q. Are you acquainted with D. W. Jolliffee? A. Yes, sir.
“Q. How long have you known him? A. About 3 or 4 years.
“Q. What, if any, transaction did you have with him on the 3d day of December, 1918? A. Sold him some cattle.
“Q. Did you have any agreement with him about these cattle? A. Yes, sir.
“Q. Just state to the court what that agreement was. A. Well, I made a deal with Mr. Jolliffee to sell him some cattle.
“Q. Where were you? A. At Coffeyville.
“Q. Just state exactly, as well as you can, just what the conversation was. A. We was talking about some cattle, and I said I would sell him some; I first was going to sell him some heifers of my own, and I talked to him about some other cattle.
“Q. Did you tell him who the cattle belonged to? A. X told' him when he got them.
“Q. Al, state what the conversation was — as near as you can the words you used. A. Well, when he took the cattle I told him where they belonged, and I told him after he took them he would have to get away with them — that they might get him — and he asked me which ones to kill first, and I said I didn’t know, that there was some big steers there.
“Q. This was on the day on which you had this agreement to go ahead and get these cattle? A. I made the deal with him, and we had talked about who they belonged to, and he said he would buy the cattle.
“Q. What was the date on which you first talked to him about the cattle? A. I believe it was about a week before I took them to him.
“Q. At that time did you have an arrangement about when and where you was to meet him? A. We was to meet along the road between Lenapah and Howden — no particular place.
“Q. Now, did you see him any more from that time up until the date you delivered them to him? A. No, sir.
“Q. Did he meet you there as per your agreement? A. Yes; we met along the main road.
“Q. Now, what kind of cattle was these? A. Well, they was a going on 3 and 4 old steers; that’s what I would take them to be.
“Q. Did they belong to you? A. No, sir.
“Q. Did you take them away from somebody else? A. Yes, sir.
“Q. When did you get them? A. I got them the night before he received them.
“Q. You are acquainted with the value of cattle, are you not — you are a cattle man? A. I have handled a good many cattle; yes, sir.
“Q. Do you know what the market price of stock was at that time? A. No, I don’t.
“Q. I will ask you to state what was the agreement you had between you and Mr. Jolliffee as to the splitting of the proceeds? A. Well, the only talk we had, he asked me what they was worth, and I told him what I thought they ought to be worth.
“Q. What did you tell him they ought to be worth? A. Around $900, and I finally agreed to take $500.
“Q. I will ask you to state at the time you had the first conversation with Mr. Jolliffee if you told! him who those cattle belonged to? A. I never told him at that time, but he knew they did not belong to me. I told him when I delivered them to him.
“Q. You did tell him when you delivered them to him who they belong to? A. Yes, sir.”
Cross-Examination.
“A. I never told him I was a thief, but he knew that I was going to steal them.
“Q. You think a man buying cattle is a thief? A. If he knows that I am a thief.
“Q. Will you please tell what the understanding was? A. Well, he knows what the understanding was.
“Q. Then you told him you was going to steal some cattle? A. Yes, sir; that was our understanding.
“Q. Now, I want to discuss another question. Had you ever stolen any cattle before? A. No, sir.
“Q. Ever stolen anything else? A. No, sir. # * #
“Q. Did you know what cattle you was going to steal when you made this bargain? A. I had. an idea.
“Q. Yes; you knew what cattle you was going to steal? A. I knew what I figured on getting.
“Q. And if the figures did not turn out just right you was going to steal somebody’s else cattle? A. I don’t know whether I would or not. I figured on taking some out of the bunch I got.
“Q. Since you admit you stole the cattle, who helped you steal them; who help you steal those cattle? Did you have any assistance to steal those cattle? I would like to know what is the matter with that question, Did you have assistance in stealing them? A. Yes; there was somebody with me.
“Q. 'Who was it? A. I don’t know that I have to tell.
“Q. The court put you under oath, and I have asked you who helped you steal those cattle, and — I don’t believe I want to ask you any more questions. That is all. I don’t want to push you. * * *
“Q. Where was that arrangement put through? A. We were together at Coffeyville, Kan.
“Q. Where at? A. Well, I believe I saw Mr. Jolliffee at the meat market.
“Q. Barnett’s meat market? A. Yes, sir.
“Q. Who was present? A. I was in the shop, and he was in back end.
“Q. Back end; do you mean Mr. Barnett’s meat market? A. Yes, sir.
“Q. Yes; but what do you mean by the back end? A. The back part of it.
“Q. You mean behind the counter? A. No, sir; back there.
“Q. Where they make sausage? A. Yes, sir.
“Q. Who was present? A. Nobody; there was a man in the building, but he did not hear our conversation.
“Q. How did you come to start that talk? A. I had sold him some cattle before that, and we was up there, and I had some cows to sell, and we got to talking about this other stuff, and He said he would buy it.
“Q. Wait a minute; pardon me; what do you mean by this other stuff? A. The cattle Mr. Jolliffee bought.
“Q. You was talking to him about this other stuff, and how did you come to talk to him about it? A. First I asked him if he wanted to buy some cattle of my own, and the next time I saw him I decided to keep mine, and I said I had some stuff in view—
“Q. What do you mean by stuff? A. Wet stuff; stolen property.
“Q. How did you get it into your craw to talk to Mr. Jolliffee about taking that kind of property? A. I heard that he was that kind of a man; he came to my place and told me that they was going to look in my pasture for wet stuff, and if I had any stolen to get rid of it.
“Q. And you never did that before? A. No, sir.”

From the testimony of others it appears that, after Spencer was arrested and put in jail, the sheriff accorded him the privileges of a trusty, and while he was in the sheriff’s office, on the pretext of using the telephone, he walked out and made his escape in a stolen automobile, and fled to Wilson county, Kan. There he committed burglary and larceny, and fled to Colorado, where he was arrested and returned to the sheriff of Wilson county, Kan. After the trial of this case he was again returned to the custody of the sheriff of Nowata county, where he pleaded guilty to and was sentenced to the penitentiary on three separate criminal charges. One of these was a theft subsequent to the theft involved in this case, and another was prior to this theft.

Defendant Jolliffee claims that he purchased these cattle in good faith, in the 'usual course of business, and that, as he estimated it, he paid for them the current market value, about 6 cents per pound, for cattle in their condition; that some of these cattle were in very poor condition and had to be fed for a season before they would be fit for slaughtering. After the cattle were purchased they were driven onto the scales near the slaughter pens and weighed, their total weight being 8,830 pounds.

The testimony as to the prevailing price and value of steers of the kind and character of these here in question was conflicting, the estimated market price fixed by different witnesses varying from $45 to $80 per head.

A number of witnesses testified that the defendant’s reputation for truth and honesty was good, and there was no evidence to the contrary.

That this defendant was implicated in the theft of these cattle, as stated by Spencer, was nowhere corroborated, unless by the fact, if it be a fact, that the price paid by the defendant for these cattle was so inadequate as to raise an inference of guilt, or unless the fact that the defendant and his helper met Spencer with the cattle some distance from town, and before reaching their destination gave Spencer a check for the cattle, and that Spencer did not accompany the cattle to the slaughter pens, but went into town alone later that day to cash the check for the purchase price, raises such inference. These facts constituted' an unusual transaction, and might possibly be deemed a corroboration of a part of Spencer’s story. On the other hand, these facts are not inconsistent with the defendant’s claim that he bought these cattle in good faith. There is no direct testimony on the part of any other person implicating the defendant in the original theft; the only testimony to that effect is the testimony of the confessed thief, Spencer, coupled with the circumstances just related.

The defendant objected to the introduction of the testimony of Spencer taken at the preliminary hearing, on the ground that the presence of Spencer was available; that the sheriff of Wilson county, Kan., had offered to surrender Spencer to the sheriff of Nowata county upon payment of the expense incurred in procuring Ms return from Colorado; and that the obligors on Spencer’s bond in one of these eases pending against him in Nowata county offered to pay this expense. It is claimed that the county attorney of Nowata county did not want Spencer returned at that time, possibly to avoid a further damaging cross-examination of this witness on the stand in the presence of the jury, and because, as was shown, the county attorney had a personal pecuniary interest in allowing Spencer to remain in the custody of the Kansas sheriff in order that he might profit personally in the forfeiture of Spencer’s appearance bond. In support of this contention the defendant introduced the following stipulation:

“In the District Court of Nowata County, Okla.
“State of Oklahoma, Plaintiff v. Al Spencer, J. R. Martin, Wendell Powell, R. L. Holland, and J. L. Armstrong, Defendants. No. 3409.
<rIt is hereby stipulated and agreed by and between C. F. Gowdy, county attorney for Nowata county, and E. E. Sams, attorney for A1 Spencer, the principal defendant on the bond sued upon in said cause, as follows, to-wit:
“That said suit shall be compromised and settled upon the following terms and conditions, to wit:
“ (1) The attorney for the defendant is to confess judgment in the sum of $1,000.
<r(2) The county attorney is to consent to the setting aside of the forfeiture of the defendant’s bonds in cases numbered 792, 800, and 815, being all of the appearance bonds of A1 Spencer in Nowata county.
“(3) It is agreed that the $2,000 cash in the hands of the court clerk is to be disbursed as follows:
“ (a) $750 to the county treasurer of Nowata county, being the county’s three-fourths interest in the judgment to be confessed.
“ (b) $250 to C. F. Gowdy, county attorney, being 25 per cent, of the recovery in the above-entitled suit.
“ (c) $750 to Mrs. A1 Spencer, she being the person who* furnished the money now in the hands of the court clerk.
“ (d) $250 to E. E. Sams as attorney fees.
“The above stipulation to be subject to the approval of' the district court for Nowata county, and not to be of any force or effect or binding on the parties until the district court by his order shall approve the same.
“C. F. Gowdy,
“County Attorney.
“E. E. Sams,
“Attorney for Defendant A1 Spencer.”

The court subsequently refused to approve this stipulation.

The defendant urged that the transcript of the testimony of Spencer taken at the preliminary hearing should not be introduced, for the reason that the presence of the witness in court was available, and that, under these circumstances, the defendant had a constitutional right to be confronted with this witness; that his detention in Kansas was collusive and unfair to the defendant; and that his escape and absence from the state was due originally to the negligence of the sheriff of Nowata county in permitting his escape from the county jail.

If the witness can with reasonable diligence be obtained at the final trial it is the right of the defendant to require his presence. It frequently happens that the cross-examination of a witness at a preliminary hearing, occurring as it does soon after the offense has been committed, when not all of the facts relating to the commission of the crime are known, is more or less perfunctory, and that, by the time the cause comes on for final trial, the defendant is better able, by reason of more time and research, to conduct a thorough cross-examination in the presence of the jury. Clearly, the county attorney, representing the state, would have no right to take any affirmative action calculated to prevent the personal appearance of the witness. As to whether the county attorney did not desire the presence of the witness Spencer, and whether he did anything to prevent his presence at the trial, was an issue raised before the court at the trial upon which testimony was heard and considered, and the finding of the trial court that the witness was not absent by reason of any collusive conduct on the part of the county attorney will not be disturbed. In the case of Davis v. State, 20 Okla. Cr. 203, 201 Pac. 1001, it was stated:

“To say that no diligence is required1 to produce the witness in open court, where it is possible to do so, is not in keeping with the spirit nor the letter of the constitutional guaranty that a defendant in a criminal action has a right to be confronted face to face with the witnesses against him.”

For the reasons and application to particular cases of this rule, see the body of the opinion in the Davis Case, and other eases therein cited. In the instant case the prosecuting attorney was in no way responsible for the fact that this witness was a fugitive from justice in another state; the most that can be said is that he refused to put into motion the means by which he might have obtained his surrender by the officers of the other state to the officers of the trial court. "We think it would have been commendable in the county attorney to have done this, but we are not ready to disturb a long line of decisions of this and other courts, and say that it is necessary for a county attorney, in the absence of actual collusion, to make an effort to procure the attendance of a witness then held in custody by officers of another state, as a~ condition precedent to the right to introduce in evidence a transcript of tbe testimony of sueb fugitive from justice taken at a preliminary bearing or former trial.

From a perusal of all tbe testimony in tbis case it appears-that- tbe state at various times sought to show that the price paid to Spencer for these 12 bead of cattle was inadequate. It is urged that tbe court erred in permitting testimony to be introduced as to tbe price of other cattle purchased and sold, at other times and places; among other sueb instances Dawson, tbe owner of tbe stolen cattle, over tbe objections of the-defendant, testified as follows:

“Q. Was there any difference in tbe market price of that class of steers, that age and weight, between December 1,. 1918, and January 1, 1919? A. Yes, sir.
“Q. What was tbe difference? A. Well, they got higher all along from tbe fall on up to spring; they got higher.
“Q. I believe you said you bad about 600 bead of tbe same class and grade of cattle as tbe 140-odd bead you bad up there. Where were they running in tbe early fall of 1918? A. Part of tbe time at tbe ranch and part of tbe time in tbe Osage.
“Q. Where did you buy them? A. Bought them of Pat Manning. He bought them on tbe Fort Worth market, and shipped them up here.
“Q. How many? A. About 1,200 bead.
“Q. Did you have occasion to sell any of tbe cattle about tbe latter part of October? A. I sold 517 bead to Henry Faulkner.
“Q. What was tbe age of those cattle? A. Just tbe same as these, coming 3’s and 4’s.
“Q. How did they compare in weight? A. Just about the same.
“Q. When did yon make that sale? A. I made it the 29th day of October.
“Q. What did you get per head for those cattle?
“Mr. Van Leuven: We object to this as not proper rebuttal, incompetent, irrelevant, and immaterial.
“Mr. Moses: We think it is in rebuttal of the testimony of witnesses Burnett and Kimes for the defendant as to the market value of cattle.
■ “Mr. Van Leuven: The sale of cattle that he made to Faulkner, other cattle in October, is not proper rebuttal.
“Mr. Moses: We think it is.
“The Court: I think so. Overruled.
“Mr. Van Leuven: Give us an exception.”
“A. $73.
“Q. Now I will ask you if you had occasions, or if some one for you had occasion, to sell any of those steers in the month of December on the Kansas City market? A. My brother did at one time.
“Q. How did that steer compare in age, size, and weight with the remainder of the cattle that were up there at this darkey’s? A. I suppose they were the same kind — came out of the same bunch.
“Q. I will ask you to state whether or not this is the account sale (handing witness a paper) of what that animal brought on the Kansas City market ? A. Yes, sir.
“Mr. Moses: We offer this account sale in evidence.
“Mr. Van Leuven: We object to the evidence of this particular sale as not being proper rebuttal testimony, and not competent to prove the market value of the steers involved in this case.
“The Court: What is the date of that?
Mr. Van Leuven: December 31, 1918.”

Then following an extended argument between counsel and court witb reference to the admissibility of tbis class of testimony. Finally the objection was overruled,- and the witness was permitted to testify that this particular steer was sold on the Kansas City market on December 31, 1918, for $88.75.

To set out all of the testimony of this character that was introduced would prolong this opinion unnecessarily. Suffice it to say that we think that this and other like testimony found in the record was incompetent and prejudicial. This theft, excluding the testimony of the accomplice Spencer, was nowhere brought home to the defendant, and the jury might have inferred, and possibly did infer, that because the defendant bought these cattle at approximately $45 per head he at least had guilty knowledge that they were stolen property. We think the price paid for and received for cattle culled out of a herd of 1,200 head at another time and place was improper, and constituted no correct standard by which the jury would be authorized to estimate the value of the particular cattle here in controversy. .

On redirect examination of Mr. Barnett, the father-in-law and business associate of the defendant, defendant sought to show, as affecting the motive, possible bias and malice and the credibility of the witness Spencer, that Barnett had made complaint against Spencer in Nowata county for the theft of these cattle, and the court refused to permit this showing to be made. The record elsewhere discloses that Barnett, and possibly the defendant, did sign the original complaint against Spencer. Originally complaint was made against Jolliffee and Barnett, jointly, and upon the hearing of the motion for a new trial on the ground of newly disclosed evidence the county attorney stated:

“Well, my first information about any case at all was a complaint charging Barnett and Spencer, and possibly Jolli-ffee, and when I found it out I think I had them signing complaints against each other.”

The exclusion of the testimony of witness Barnett, of which complaint is made, is as follows:

“Q. Did you after these cattle, or after these steers— after you turned them over to Dawson, and found out that Spencer had stolen them before he sold them to Mr. Jolliffee here, did you take any action against Spencer?
“Mr. Moses: Well, that is objected to as incompetent, irrelevant, and immaterial.
“Mr. Van Leuven: To show his attitude in this case, if your honor please.
“Mr. Moses : This man is not on trial for any offense.
“The Court: Sustained.
“Mr. Van Leuven: Well, Spencer is an accomplice, and he has testified here.
“Q. Did you swear out a warrant for Spencer?
“Mr. Moses: Objected to as incompetent, irrelevant, and immaterial. We think the court has passed on that once.
“The Court: Sustained.”

As affecting the interest, bias or prejudice of the witness Spencer towards the defendant, we think it was proper and competent to show that the witness himself was being prosecuted for this offense by Barnett and the defendant, and that it was prejudicial error to exclude such showing. Yoder v. State, 18 Okla. Cr. 637, 197 Pac. 848; Gilbert v. State, 8 Okla. Cr. 543, 128 Pac. 1100, 129 Pac. 671.

The defendant objected and excepted to instruction No. 7 given by the court, as follows:

“You are instructed that the prosecution in this case uses the testimony of a witness who may be culpably implicated in the commission of the crime of which the defendant is accused; that is, he may be one who knowingly and voluntarily co-operated or aided or assisted in the commission of the crime of which the defendant is accused; and whether or not he is such a person is a question of fact for you to determine from the evidence before you. If you believe from the evidence in the case that such witness is implicated in the crime charged in the information, as above defined, then in law such witness is an accomplice and you are instructed that a conviction cannot be had upon the testimony of an accomplice unless such accomplice be corroborated by such other evidence as tends to connect the defendant with the commission of the offense and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof, but such other evidence, to be sufficient to corroborate the evidence of an accomplice, must tend to connect the defendant with the commission of the crime of which the defendant is accused.”

The whole foundation of the state’s case rested on the theory that the witness Spencer was an accomplice. If the defendant was culpably implicated in this transaction at all, the things done by Spencer, as shown by the evidence, as a matter of law made bim an accomplice; otherwise the defendant under the testimony was guilty of no crime, and it was error to submit that issue as a question of fact to the jury. Where the acts and conduct of a witness are admitted, it becomes a question of law for the court to say whether or not these facts and acts make the witness an accomplice. McKinney v. State, 19 Okla. Cr. 94, 198 Pac. 108; Moore v. State, 14 Okla. Cr. 292, 170 Pac. 519; Cudjoe v. State, 12 Okla. Cr. 246, 154 Pac. 500, L. R. A. 1916F, 1251. This error may not have been prejudicial, because the jury from the testimony must have concluded that Spencer was indeed an accomplice. Under the testimony, no other conclusion could have been reached.

The defendant also objected and excepted to instruction No. 8, which is as follows:

“When a person is charged with a crime the courts permit such person to introduce testimony of his previous good character for the consideration of the jury. You should consider the evidence permitted to go to you in this case on that point with all the other evidence and give it such weight as you may deem it to be entitled, and yet, the court instructs you that evidence of good character is no defense against crime proven beyond a reasonable doubt. If the defendant is proven guilty of the crime charged beyond a reasonable doubt, any good moral character borne by him in his community is no defense in this prosecution.”

While this instruction, upon careful analysis, is not a misstatement of the law, the qualifying clauses after the word “yet” might have confused the jury. Up to that point the instruction was complete and sufficient. The defendant’s previous good character, of itself, considered along with all the other testimony, might have raised a reasonable doubt in the minds of the jury.

In an early case (Wilson v. State, 3 Okla. Cr. 714, 109 Pac. 289) a general instruction on the good character of the defendant, similar to the one given here, excluding the qualifying clauses, was approved. ' This was practically followed in Holmes v. State, 6 Okla. Cr. 541, 119 Pac. 430, 120 Pac. 300. See, also, Edgington v. U. S., 164 U. S. 361, 17 Sup. Ct. 72, 41 L. Ed. 467, and annotations in 10 A. L. R. 83.

It is next urged that, as a matter of law, the testimony of the accomplice Spencer to the effect that the defendant was implicated in the theft of these cattle was not corroborated. In the case of Thompson v. State, 9 Okla. Cr. 525, 132 Pac. 695, the defendant was convicted of a violation of the prohibitory law. Presiding Judge Doyle, speaking for the court in reversing the case, said:

“There is no evidence in the record, except that of the complaining witness, that tends to connect the defendant with the commission of the offense charged. Upon his own testimony the complaining witness is an accomplice, and a conviction cannot be sustained upon his uncorroborated testimony.”

That no person shall be convicted of a crime upon the testimony of an accomplice must be construed to mean that the person accused must in some manner be culpably implicated in the commission of the crime. Hendrix v. State, 8 Okla. Cr. 530, 129 Pac. 78, 43 L. R. A. (N. S.) 546.

In this ease there is no corroboration of the testimony of the confessed thief, unless it may be deduced from the evidence that the defendant purchased these cattle for a grossly inadequate price, upon which point the testimony is conflicting, or unless the fact that the defendant met the witness Spencer with the cattle outside of Coffeyville, as they were being driven towards that point, and paid for them there, shows that he had guilty knowledge of their being stolen property. To us it seems that neither of these facts, though established to the satisfaction of the jury, is inconsistent with the good faith and innocent motives of the defendant.

Neither the defendant nor his associate, Barnett, made any effort to eonceal the transaction; on the contrary, the hides of the slaughtered cattle were promptly exhibited to the owner, Dawson, upon his making inquiry; Dawson was informed by Barnett of the whereabouts of the other cattle, and steps were taken immediately by Barnett and the defendant to prosecute the witness Spencer. We think that as a matter of law the testimony of the accomplice was not corroborated in the sense contemplated by our statute (section 5884, R. L. 1910), providing:

“A conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as lends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely show the commission of the offense or the circumstances thereof.”

For the reasons stated in this opinion, this cause is reversed and remanded.

DOYLE, P. J., concurs.

MATSON, J., concurs in the result.