text:
    Ex parte R. L. HANCOCK.
    No. A-9291.
    April 2, 1937.
    (66 Pac. [2d] 954.)

      R. L. Hancock, per se.
    Mac Q. Williamson, Atty. Gen., for the State.
   PER CURIAM.

This is an original petition in ha-beas corpus filed by R. L. Hancock, wlm alleges that hé is unlawfully restrained of his liberty by J. ■ P. Dunn, warden of the State Penitentary, at McAlester, Okla.:

“That the cause of this unlawful and wrongful detention is to the best knowledge and belief of your petitioner, is, that as warden of said penitentiary and those acting for him and under him have what is known as a commitment from the district court of Tulsa county, Oklahoma, sentencing him to serve a term of five years in said penitentiary. That the said commitment says, and the said warden informs your petitioner, that he is being so held and confined, charging him with ‘stealing a mule,’ pretending the said charge and commitment to be legal and a violation of the Criminal Statutes of the State of Oklahoma.”

The only question to be determined by this court is, Do the statutes of Oklahoma cover the larceny of a mule? It is admitted by the petitioner that he is confined by reason of the commitment on a conviction, charged with the larceny of a mule. Section 2267, O. S. 1931 (21 Okla. St. Ann. § 1716), under the title, Larceny of Domestic Animals, in part is as follows:

“Any person in this state who shall steal any horse shall be guilty of a felony and upon conviction shall be punished by confinement in the State Penitentiary for a term of not less than five years nor more than ten years.”

The last sentence in section 2267, O. S. 1931 (21 Okla. St. Ann. § 1716), supra, is as follows:

“The word ‘horse’ as used in this act, shall include all animals of the equine species.”

It cannot be successfully disputed that the mule is of equine species. 30 Corpus Juris p. 458, § 1, defining the horse, in pant says:

“A generic term including all variation of age, sex, and conditions; any animal of the genus equus; a neighing quadruped used in war, draught and carriage; a term as nomen generalissimum: may embrace within its meaning a colt, a filly, a gelding, a jackass, a mare, a mule, an ass or a stallion.” Citing many cases in support of the definition.

It is clear from the statement of petitioner that he has been tried and convicted of the larceny or stealing of a mule. The court has no' doubt that the mule is an animal of the equine species, and comes within the provisions of section 2267, supra.

The petitioner does not state sufficient facts in his petition to1 entitle him to the relief prayed for. The writ is denied.


source: Caselaw Access Project

author: DAVENPORT, P. J.

license: Public Domain

text:
    OTT BANKER v. STATE.
    No. A-9158.
    April 2, 1937.
    (66 Pac. [2d] 955.)

      Meacham, Meacham & Meacham, for plaintiff in err- or.
    Mac Q. Williamson, Atty. Gen., for the State.
   DAVENPORT, P. J.

In this case the plaintiff in error was by information charged with the crime of transporting intoxicating liquor; was tried, convicted, and sentenced to serve 60 days in jail and a fine of $100. Motion for a new trial was filed, considered, overruled, and the plaintiff in error, the defendant in the lower court, appeals.

Before the case was called for trial the defendant filed a motion to' suppress the evidence and testimony, for the reason that all the evidence which the state offers was obtained by an unlawful and illegal search of defendant’s automobile, and said search was made in violation of the statutory rights of the defendant.

In support of his motion to suppress the evidence, Alimón Russell was called as a witness, and testified in substance:

“I know Ott Banker; saw him on the 2Sd day of November, 1935, near the northeast corner of the brick plant, at the crossing where Maddox avenue, in Clinton, Okla., extends out in to the country and intersects with the line that runs north and south from the brick plant; John Owens and John Thomas were in the car with me; we were going north when I first saw the defendant going west; we had started back to town is what had really happened; we went on north and stopped where there was another car parked, then I came on and turned at the next mile and went east; I caught up with the car about a half mile before I got to town; after I caught up with it I drove along behind the car; we were driving about 15 miles an hour; the first mile we went pretty fast, probably about 35 or 40 miles.”

Witness then says something about the tail-light not being very bright, and that they did not have proper lights on the car.

In response to the following questions the witness gave the following answers:

“Q. The truth about it is you thought they had whisky in the car? A. To tell the truth I was pretty near sure he had whisky, and I did not know he did not have the proper lights on his automobile.
“Q. When you followed them the thought that caused you to follow them, or suspicion at least they had whisky in the car? A. Well, any time you see a bootlegger you always think he has whisky.
“Q. That is what you thought in this case? A. Yes, I thought he had some whisky, and I knew he was violating the highway laws.
“Q. That is one of the reasons you followed them, you thought it had Avhisky in it? A. I thought it had whisky in it, but if it had not turned the -same way I was going, I probably would not have followed them.
“Q. You followed them that half a mile with the idea of searching it for whisky, didn’t you? A. I figured if I stopped them I would search it.”

The plaintiff in error as grounds for reversal of this case has assigned, first, the overruling of his motion to suppress the evidence because the search of the defendant’s automobile was illegal. Second, the court erred in overruling the plaintiff in error’s demurrer to1 the evidence of the^ state, and his motion for a directed verdict. The defendant insists that under the testimony on his motion to suppress, the court should have suppressed the testimony of the state, and held that the search was illegal.

The view the court takes of the record in this case, we think the contention of the defendant is borne out by the record, and that the only testimony the state offered was testimony secured by an unlawful search and seizure. It is true the sheriff undertakes to say he stopped the car because the lights were defective. If, as attempted to be shown by the sheriff in his testimony, the lights were defective, it does not stand to> reason that an officer would follow the can for a mile and a half, as the sheriff says he followed this car, without arresting the defendant. The sheriff’s statement does not stand to reason. No officer charged with enforcing the law would follow a car for the distance.the sheriff says he did if he discovered the defendant was violating a statute of the state in his presence. You cannot read this record and reach any other conclusion than that the sheriff and the officers followed this car, stopped and searched it in violation of a statute of the state of Oklahoma and the rights of defendant. The defendant may be guilty, yet he is entitled to1 his constitutional rights, and to a fair and impartial trial, and if convicted at all, he must be convicted by competent testimony lawfully secured against him, and not by officers violating the law to secure it. It is a sad condition when officers sworn to enforce the laws set out and violate it in order to try to secure evidence against a party, and then, when they realize they made a mistake, seek to justify it under some subtle subterfuge that the party was violating another statute of the state.

There is no doubt in the mind of the court that it was an afterthought of the sheriff, for the reason that in his answer to1 some of the questions propounded to him by the attorney for the defendant he states:

“I thought it had whisky in it, but if it had not turned' the same way I was going, I probably would not have followed them. I figured if I stopped them, I would search it.”

It is perfectly apparent from the testimony in this case that the defendant’s car was not searched because of defective lights, but for the purpose of seeing, if he had whisky in it. The search was without authority of law, the officer having no search warrant to search the car and no warrant for the arrest of the defendant.

There being no competent testimony in the record to sustain the conviction, the motion of the defendant to suppress the evidence should have been sustained. The court erred in overruling the motion to suppress.

The judgment is reversed.

DOYLE and BAREFOOT, JJ., concur.


author: DOYLE, J.

text:
    CLAY CAPE v. STATE.
    No. A-9099.
    April 2, 1937.
    (66 Pac. [2d] 959.)

      Mathers & Mathers and G-. Gordon McBride, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, J.

This appeal is from a judgment of conviction of the crime of “assault with intent to commit rape,” rendered October 4, 1935, and sentence in accordance with the verdict of the jury of imprisonment in the county jail for a period of one year, and in default of the payment of the costs, further imprisonment in said county jail for a period not to exceed one day for every dollar of the costs.

The information in substance charged that in Oklahoma county on May 19, 1935, Clay Cape, the defendant, did then and there assault with intent to commit rape, one Helen Gilmore, a female, with the felonious intent to have sexual intercourse with her by force and violence sufficient to overcome any resistance she might make, she, the said Helen Gilmore, not being the wife of said defendant.

The only questions presented that require consideration arise upon the sufficiency of the evidence to sustain the verdict and judgment of conviction.

The evidence shows that at the time of the alleged1 commission of this offense the prosecutrix, 25 years of age, lived with another girl in an apartment, in the first block East Park, Oklahoma City. The defendant, 30 years of age, lived with his parents on a farm near the city and worked in the city as a mechanic; had lived in Oklahoma county from childhood. He was the owner of an automobile. Meeting his friend Jimmie Cathey in the city that .Sunday afternoon, Cathey told him his friend Ruth Sanders had arranged a blind date for him with another girl. He told Cathey he had a date for that evening. Cathey insisted that they make the date that afternoon, and in defendant’s car they drove to Miss Sanders’ home. Cathey went in and returned with Miss Sanders. On the way to the apartment where the prose-cutrix lived, it was suggested that they take some liquor along, and a pint of whisky was procured. Arriving at the apartment the defendant there for the first time met the prosecutrix. Remaining there about an hour, and drinking highballs, they left for a drive in the defendant’s car, and visited Sprink Lake Park; after staying there about an hour they drove around the city, stopping at Miss Sanders’ home to* enable her to' get a coat, then continued to drive around the city. The defendant mentioned his other date for that evening, and they stopped and went into' a drugstore; the defendant went to the telephone and they heard him call off his first date. About dark they were driving down Main street; Cathey told the defendant to stop the car, and he with Miss Sanders got out. The defendant then drove two' or three blocks off Main street, stopped, left the car, and was gone about five minutes. When he came back he drove to Thirteenth and Robinson, there stopped at a drugstore and ordered, curb service, Coca.-Cola and paper cups, then he drove north to Twenty-Third street, turned east about a mile, stopped at a filling station on a corner east of the Capitol, was gone about ten minutes and returned, drove on six or seven blocks, turned off on a side street a couple of blocks, and turned the car facing Twenty-Third street. It was then about 9 o’clock, and there the assault out of which this prosecution arises occurred.

The prosecutrix testified that her friend Ruth Sanders called her that afternoon and told her she had made a date for her, which she accepted. About 4 o’clock Miss Sanders and Jimmie Cathey, together with the defendant, called at her apartment; after staying there about an hour, during which time they drank whisky brought there by the men, and she had one drink, they then went riding, stopping at Springlake for about an hour; then they drove around through the city until it was dark; driving down Main street, Jimmie told the defendant to stop the car, and he with Miss Sanders got out; that she asked the defendant to take her home, and he refused and drove two or three blocks off Main street to' a house, stopped, and went in and was gone about five minutes; he then drove north to Thirteenth and Robinson and there stopped at a drugstore and ordered, curb service, Coca-Cola, and paper cups, and be had more than one drink there; then he drove north to Twenty-Third street, turned east about a mile, stopped at a filling, station, went in, and was gone about ten minutes, then drove on six or seven blocks and turned off the street a couple of blocks, then turned back and stopped; that she protested against stopping the car, and he started making advances, tried to kiss her and told her his intentions were to have sexual intercourse; that she was trying to prevent what he was trying to do, and he struck her on the head near the left eye with his fist and he hit her more than once; that during the struggle, which was carried on for about 4'5 minutes, she managed to get hold of a car crank and hit him on the head with it and he stepped out of the car; then she got out on the other side, ran to the highway, and stopped a car driven by a man with two ladies; they took her to the University Hospital, where Dr. Eobinson treated her eye; that she called her roommate; shortly afterwards Dr. Glomset called and took her to¡ the Polyclinic Hospital, where she remained that night and the next day.

On cross-examination she stated that she was married to Dick Walker in 1928, and was divorced; that in July this year she remarried Mr. Walker; that she had a few highballs at her apartment before they came; that as a Avitness in the preliminary hearing she did not say anything relative to the defendant’s clothing being open and did not testify that he put his hand under her dress; that she asked the doctor not to report the case; that the only complaint she made to the parties that picked her up was that her eye was hurt; that she told the parties that picked her up and told Dr. Eobinson that her name was Helen Smith, and she told the officers the next morning that her pocketbook and her watch were gone.

Jimmie Cathey testified that the date was made so they could drive around in the defendant’s car; that on the way to1 Miss Gilmore’s apartment he gave the defendant the money to get some whisky; while there the two girls and the defendant went into the kitchen to drink the whisky; that Miss Gilmore asked him if he wanted a drink and he told her no; that before he left the car there was a dispute about getting more liquor, and after leaving the car with Miss Sanders he did not see the defendant again until about 2 o’clock that same night, when he came to his hotel and had a pocketbook, a shoe, and a hat, and they drove to Miss Gilmore’s apartment; that at that time the defendant had blood on his face; that he went into the apartment; Miss Gilmore was not there, and when he came back he told the defendant that he was going to stay there awhile and asked him for and was given taxi fare to return.

Ruth Sanders testified that she arranged the date to go car riding; that she was in the car with Jimmie when he handed Mr. Gape some money and told him to buy some liquor; that the liquor was served in the kitchen of Miss Gilmore’s, apartment, but witness did not drink any.

Cross-examined, she stated that she had seen Miss Gilmore slightly under the influence of liquor; that when she left the car with Mr. Cathey, Miss Gilmore went off with the defendant of her own free will.

Dr. John L. Glomset testified that he first saw the prosecutrix at University Hospital around 11 o’clock that night, and took her to. the Polyclinic Hospital; found bruises and swelling on the left side of the face, mostly around the eye, bruises over the shoulders and both legs.

Miss Oliver testified that she was in the car when they stopped and picked up the prosecutrix on N. E. Twenty-Third street, and when she got in the car witness smelled whisky on her breath; that she talked kind of funny, and witness thought she was drunk; she was complaining of her eye and said she wanted a doctor, and they took her to the University Hospital; she said she had a fight with a man.

Miss Carpenter testified that she was in the car when they picked up the prosecutrix; that she was complaining of her eye when she got in the car and said something about her purse having been taken and they took her to the hospital; she said she had a fight Avith a man. Witness asked the prosecutrix if the man tried to get smart with her, and she said: “No, he was awful nice to me; just look at my eye.” That when they took her to the hospital she told the doctor not to report this.

James Duffey testified that he was driving in on N. E. Twenty-Third street with two girl friends and picked up the prosecutrix, and when she got into the car there was a trace of whisky on her, and she had a black eye; that he drove to the University Hospital and the girls took her in; that he noticed her skirt had a rip on the side.

When the state rested the defendant demurred to the evidence and moved for a directed verdict of not guilty on the ground that the same was insufficient to sustain a conviction. Overruled. Exceptions.

On the part of the defense, Dr. M. E. Robinson testified that he Avas surgeon in pathology at the University Hospital; that he treated a lady’s eye that came to the hospital and has since learned that her name was Helen Gilmore; that the name she gave that night was Helen Smith; that she had a bruised eye that was swelling, and he noticed she had a bruised place on her head; she said she wanted the eye fixed up so she could go to work in the morning; that he asked her how she got the black eye, and she said she had been in a fight with someone and got hit; that both of them had used an automobile crank; she said she was hit with the crank, but that she used the crank first; that he knew that she had been drinking and there was evidence of intoxication; that in their conversation she did not make any statement relative to a man attempting to rape her.

The defendant as a witness in his own behalf testified that he met Jimmie Cathey about 2 o’clock Sunday afternoon, who said he had a date with Ruth Sanders and proposed to get a lady friend for him. He told him it would hardly be worth while because he had a date at 7:30. Cathey kept insisting, so he said they would ride around awhile, and they drove to Miss Sanders’ home. Jimmie went in and came back with Miss Sanders. She told him she had a lady friend she wanted him to meet, and he consented. Miss Sanders got in the ca.r and on the way suggested they should get something, to* drink. Jimmie gave him the money and they stopped at a place and he got a pint of whisky. While at the apartment they went into- the kitchen and Miss Gilmore made highballs with the whisky. All except Jimmie drank the highballs. After visiting there about an hour, the girls suggested a drive, and as they were ready to leave Miss Gilmore said, “I believe there is some more whisky in there, let’s drink what is left before we go,” and he and the women drank what was left. They then drove to- Spring Lake, where Jimmie played baseball; after staying there about 30 minutes they started back, stopped at a drugstore, and Jimmie and Miss Sanders got out and went in. Miss Gilmore suggested that he break his other date, and they went in and be called the lady he had the date with and told her he would not be able to see her that night. After driving around for about an hour, the girls wanted to get some more liquor. Jimmie said, “I rather you girls would not have any more to drink,” and there was an argument while they were driving down Main street, and Jimmie said, “Stop the car,” aud said to Ruth Sanders, “I am taking you out of this car,” and they left the car. As they drove on, Miss Gilmore asked him to buy her some whisky before taking her home, so he drove to another place, and leaving her in the car went and got a pint of whisky, then drove north to Thirteenth and Robinson and there ordered Coca-Cola and paper cups, and they had a couple of drinks of whisky with the Coca-Cola. A police car came by and they drove on, turned east on Twenty-Third street, and he stopped at a filling station, got out of the car and went to a rest room; was gone between five and ten minutes. When he came back she was taking another drink, and he said, “You are going to get tight if you don’t quit drinking like that.” She said: “Who in the hell cares, we are going to get drunk, are we not?” He said, “No, we are not going to get drunk and get in jail, don’t do that.” He drove on six or seven blocks and turned north, then back and parked the car. She took another drink and he begged her not to* get drunk. She kept insisting on drinking, and he took the bottle from her and refused to let her have another drink. She got sore and called him a poor sport and called him all kind of names, and they got into a scuffle over the whisky bottle, and he again took it away from her. Then the first thing he knew she hit him on the side of the head with a car crank. It made him half crazy and he slapped her back a few times. Finally he came to himself and she came to her senses and said she was sorry that she hit him. with the crank, then said, “Let’s have another drink and forget about it,” and they each took another drink. It was then about 10 o’clock. In a few minutes she wanted another, and he said, “No, we are not going to drink any more.” She got out of the car, pulled off her shoe, turned back and hit him with it, and ran away. That he sat there a few minutes; when she did not come back, he got uneasy and got out of the car and looked around for her; then got in the car, circled several blocks looking for her, but did not see her any more that night; that he did not attempt by force and against her will to have sexual intercourse with her, did not make any threats, and did not put his hand under her dress. That he drove back to Jimmie’s; he was not at home, and he waited for him until between 1 and 2 o’clock. When Jimmie came he took him in the car and drove to Miss Gilmore’s apartment. Jimmie went in and there was nobody there. They drove around and went back the second time, and Jimmie went in, was ■ gone four or five minutes, and came out and said he was going to stay awhile, and asked him for taxi fare, which he gave him. That he did not know Miss Gilmore was in the hospital until after she was released the next day. That he went that night to her apartment with Jimmie to return her purse and things she left in the car.

It is contended that the evidence is not sufficient to show a felonious assault with intent to commit rape, and that it lacks the corroboration of the prosecutrix required in prosecutions for rape and kindred offenses.

“Rape,” as defined by our statutes (Penal Code, § 2515 [21 Okla. St. Ann. § 1111]), is an act of sexual intercourse accomplished with a female, not the wife of the perpetrator, under either of the following circumstances, reciting eight conditions under which an act of intercourse will constitute rape, if accomplished. The facts in this case restrict us to the consideration of the question whether the defendant assaulted the prosecutrix with intent to commit the offense of “rape” as defined by the fourth subdivision of the section above, namely, “Where she resists hut her resistance is overcome by force and violence.”

An “assault” is any willful and unlawful attempt or offer, with force or violence, to do a corporal hurt to another (Penal Code, § 1865 [21 Okla. St. Ann. § 641]), and a “battery” is any willful and unlawful use of force and violence upon the person of another (Penal Code, § 1866 [21 Okla. St. Ann. § 642]).

An assault with intent to' rape includes every element of the crime of rape by force overcoming resistance except penetration. The felonious intent is the essence of the offense. It is elementary, when a specific intent is required to make an act an offense, that the doing of the act does not raise a presumption that it was done with the specific intent. Intent, which is essential to support conviction of assault with intent to rape, cannot be presumed, but must be shown to exist by competent evidence and beyond a reasonable doubt. Something more than a mere intention and solicitation is necessary.

It is therefore necessary that the acts and conduct of the defendant should be shown to be such that there can be no reasonable doubt as to the felonious intent. If these acts and conduct are equally consistent with the absence of. the felonious intent, then it is clear they are insufficient to justify or sustain a verdict of guilty.

In order to convict on a charge of assault with intent to commit rape by force upon a woman over the age of consent, the evidence should not only show an assault, but that the defendant assaulted the prosecutrix with the intention of gratifying his passion on her person at all events, notwithstanding any resistance she might make. Rose v. State, 32 Okla. Cr. 294, 240 Pac. 754; Brockman v. State, 60 Okla. Cr. 75, 61 Pac. (2d) 273; Vinsen v. State, 102 Tex. Cr. R. 235, 277 S. W. 644.

In the case of People v. Cieslak, 319 Ill. 221, 149 N. E. 815, 816, it is said:

“The proof of a mere assault and battery, however aggravated it may be, without the intent to rape, will not warrant a conviction of assault with intent to rape, nor will the proof of mere licentious conduct, or even violent familiarity, with the female in an effort to induce her to yield to the embraces of the assailant, where there is no proof that he intended to1 have carnal knowledge of her by force and against her will. The specific intent charged is the gist of the offense.”

In Witt v. State, 29 Okla. Cr. 357, 233 Pac. 788, 789, it is said:

“The charge is one that arouses the passions and prejudices of jurors, and for that reason it is the duty of the court to closely scrutinize the evidence, and where the evidence of the state is unreasonable, inconsistent, and contradictory, and there is inherent evidence of improbability or indications that the prosecution is maliciously inspired, the court should not permit a conviction to stand.”

In Ferbrache v. State, 21 Okla. Cr. 256, 206 Pac. 617, this court held:

“Under-the laws of this state, conviction for rape may be had on the uncorroborated testimony of the prosecutrix; but 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.”

This court does not bold with some that, as a matter of law, rape or assault with intent to rape cannot be established by the uncorroborated testimony of the prosecu-trix, but in common with all courts recognizes that, without such corroboration, her testimony must be clear and convincing; and while there is no rule of law which forbids a jury to- convict on the uncorroborated testimony of the prosecutrix, provided they are satisfied beyond a reasonable doubt of the truth of her testimony, yet the courts have always recognized the danger of conviction on her uncorroborated testimony, and her testimony, if inherently improbable and uncorroborated, will not justify or support a conviction; as the only reasonable conclusion in such cases is that such verdicts are the result of passion or prejudice, and therefore contrary to law. Dawes v. State, 34 Okla. Cr. 225, 246 Pac. 482, Davidson v. State, 57 Okla. Cr. 188, 46 Pac. (2d) 572.

The rule in such cases is that corroborating testimony should tend to show the material facts necessary to establish the commission of the crime. It is not indispensable that such corroboration should be furnished by positive and direct evidence, but proof of circumstances legitimately tending, to show the existence of the material facts will be sufficient to authorize a conviction.

An examination of the proof in this case fails to disclose any evidence corroborating the testimony of the prosecutrix, excepting her physical condition immediately after the alleged assault, which showed an assault andi battery. Her testimony is contradictory and bears upon its face evidence of unreliability, and for this reason we think there was needed corroboration that her condition was the result of force and violence on the part of the defendant in attempting to overcome her resistance to an assault with intent to commit rape.

The controverted questions, were: Which was the aggressor, and with what intent was the assault and battery committed? The conduct of these parties must be considered in connection with the fact that they both were excited by intoxicating liquor. The testimony of the prose-cutrix, when applied to the admitted facts in this case, is of a very doubtful character. She testified that the defendant made improper advances and told her his intention was to have sexual intercourse; that she was trying to prevent him, and he hit her with his fist on the head and hit her more than once; that during the struggle, which lasted about 45 minutes, she picked up a car crank and hit him on the head with it. She did not deny that she told Dr. Robinson that she was hit with a car crank, but that she used the crank first, and that she told the doctor not to report the case.

It is admitted that she made no complaint and told no one that night that the defendant had attempted to rape her.

The proper practice is that on the direct examination of the prosecutrix she may be asked if she made complaint that such an assault had been made upon her, and when, and to whom, but not as to the particular facts which she stated.

It has been held that a woman’s complaint at the earliest opportunity is a corroborating circumstance, tending to sustain the truth of her statement on the stand. It has also' been held that, when the prosecutrix fails to make complaint within a short time after the alleged rape or assault with intent to rape, her uncorroborated testimony is not sufficient to sustain a conviction. 2 Wigmore, Ev. pars. 1134-1140, and cases cited; Witt v. State, supra; Rose v. State, 32 Okla. Cr. 294, 240 Pac. 754.

The statutory age under which the consent of the female does not deprive the act of sexual intercourse of its criminal effect is fixed at 16 years and at 18 where the female is of previous chaste and virtuous character, but over that age, where the parties are single and the • female is capable of giving legal consent, our Penal Code does not make such intercourse a crime, if accomplished by the free will and consent of the female.

The defendant had never been charged with any crime, either felony or misdemeanor, and so far as the record shows had been a citizen of good repute. It appears he was 30 years old, six feet tall, and weighed 170 pounds. He admitted that he slapped the prosecutrix after she hit him with the car crank. If a, blow is given in self-defense, it is justifiable and it is not unlawful, and it does not have the character of and is not an assault.

Taking the evidence relied upon by the state to be true, we think that it was insufficient to show felonious intent to overcome any resistance she might make.

The state, in its brief, has given us no1 citations of authority to sustain its contention as to the sufficiency of the evidence to sustain a conviction.

The defendant in this case is entitled to the same presumption of innocence which prevails in other cases, and we are constrained to say that evidence has not been given here rebutting that presumption. We think the evidence was insufficient in the absence of the proper proof to show felonious intent.

For the rea-sons stated, we are of opinion that the evidence in this case is insufficient to support the verdict.

The judgment is therefore reversed.

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


author: BAREFOOT, J.

text:
    STANTON SKEEN v. STATE.
    No. A-9152.
    April 5, 1937.
    (66 Pac. [2d] 1106.)

      Kelly Brown, R. M. Mountcastle, and Jean R. Reed, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and E. J. Broaddus, Co. Atty., for the State.
   BAREFOOT, J.

The defendant was charged by information in Wagoner county with the crime of manslaughter in the first degree. He was charged with killing one Tildón Tehee, 64 years of age, a full-blood Cherokee Indian, on July 9, 1935; it being charged in the information as follows:

“* * * Did strike, hit and beat, with the fists of him, said Stanton Skeen, and with said hard, blunt weapons, held in said fists, the same being dangerous weapons, as aforesaid, the said Tildón Tehee, in the face, neck, and head of him, the said Tildón Tehee, knocking said Tildón Tehee through said door, then and there open and ajar, and onto and against the ground, which was rough and rocky, the head and shoulders of said Tildón Tehee, striking said ground heavily and with great force, whereupon said Stanton Skeen, having moved from said automobile and onto the ground, and one Levi Peyton raising from the ground said Tildón Tehee, unable to stand alone, and with his hands holding and supporting said Tildón Tehee in an upright position, again strike, hit and beat with the fists of him, the said Stanton Skeen, and with said hard blunt weapons, held in said fists the said weapons being dangerous weapons as aforesaid, the said Tildón Tehee, in the face, neck and head of him, the said Tildón Tehee, knocking said Tildón Tehee from said support of said Levi Peyton again, onto and against the said rough and rocky ground heavily and with great force, the said Stanton Skeen inflicting by his striking, hitting and beating, again and again, the said Tildón Tehee, as aforesaid, and by his knocking said Tildón Tehee, onto and against said rough and rocky ground, as aforesaid, lacerations, bruises and abrasions on the face, neck, head, back, legs, arras and body of said Tildón Tehee, and concussions of the brain of the said Tildón Tehee, and rupture of the blood vessels of the brain of said Tildón Tehee, and a fracture of the skull of said Tildón Tehee, of which said lacerations, bruises, abrasions, concussion of the brain, rupture of the blood vessels of the brain and fracture of the skull, the said Tildón Tehee did die.”

The defendant was found guilty by the jury, and his punishment assessed at ten years in the penitentiary.

The deceased was found dead on a country road in the northeast part of Wagoner county on the 9th day of July, 1935. He had some marks of violence on his body which medical authorities testified might have produced death. The testimony revealed that defendant was a farmer and lived about eleven miles north of Wagoner, in Wagoner county; that he had a Cherokee wife and four children; that prior to the 8th of July, 1935, he had employed one Levi Peyton to do- certain work for him on his farm; that Peyton was a married man who had formerly lived in that part of the country, but was then living at Dodge City, Kan., and had returned to- visit his father who lived near the defendant. On the afternoon of July 8th, defendant and Levi Peyton went to- Wagoner in a car belonging to- said Peyton, the defendant having some business to- transact there. They arrived in Wagoner after the banks closed; while there they bought two- pints of whisky and drank it and before leaving bought a half gallon of corn whisky. Later in the afternoon they met two Indian girls on the street whom defendant knew. He talked with them about doing some work for his wife and made arrangements to take them back home in the car. After midnight July 8th, the two- girls, defendant, and Peyton left Wagoner starting toward home. They drove a few miles out of Wagoner and had a flat tire. One of the girls had become so drunk she vomited on the hat of defendant, and this caused them to return to Wagoner, so defendant could have his hat cleaned before his wife saw it. While there they bought another half gallon of corn liquor and started home. While crossing a small ravine the car stopped and the girls got out of- the car and started to walk to their home. This was about 6:30 in the morning of July 9th. Some time after this the deceased, Tildón Tehee, came along. He was carrying an axe and saw. Levi Peyton talked to him, the defendant being in the back seat of the car. The witness Peyton gave him a drink of the corn liquor and he agreed to help push the car. They could, not get the car started, and defendant told them to get some one to push it and he would pay for it. Witness went for help, but at first did not find any one and returned to the car and the deceased took another drink. Witness again went for help and got a man with a couple of mules, and he pulled the car out and got it started. They went about a half mile and stopped, where the defendant and deceased again took another drink of the corn liquor. They then drove up to a gate which was very close to where deceased lived and while sitting in the car deceased said, “I am sure feeling good, I would like another drink,” and he and defendant took another drink. Up to this time there had been no hard words and nothing to indicate any difference between defendant and deceased, according to' the testimony of Levi Peyton, the only party with them. The defendant was riding in the front seat and deceased was in the back seat. The record does not show why deceased rode in the car1 after they had been pulled out. The only reason seemed to- be that they had corn liquor in the car which he desired. While sitting in the car both defend.ant and deceased, who were evidently drunk at this time, according to' the testimony of Levi Peyton, began to argue about the wife of defendant; deceased claiming that defendant was spending his wife’s money recklessly. Pey-ton, the only eyewitness, testified as follows:

“A. And then Stanton asked the Indian something' about somebody getting a check and the Indian asked him if he got his wife’s check and Stanton said he did and they got to squabbling, over some money.

“Q. Just tell what they said and what they did. A. They got to talking about Lulu’s check.

“Q. Who is Lulu? A. That is Stanton Skeen’s wife.
“Q. All right. A. And this Indian told Stanton that all he did was spend her money and Stanton told him he could take care of his own money, and I don’t know what the Indian said, he said something in Cherokee and Stanton said, ‘She is nothing but a squaw and all she can do is cook and work,’ and this Indian said, ‘Yes but you can blow her money in,’ and I saw they were going to fight and Stanton struck him.
“Q. Where was Stanton then? A. He was in the front seat by the side of me.
“Q. Where was the Indian? A. He was in the back seat.
“Q. What happened then? A. Well I saw they were going to fight and I got out of the car and the Indian acted like he was going to get out.
“Q. Could you tell where Stanton hit the Indian? A. He hit him somewhere in the face.
“Q. You got out of the car on which side? A. On! the left side.
“Q. And the car1 was facing east? A. Yes, sir.
“Q. Then what happened? A. Well, I stepped out of the car and when I got out of the car I heard the Indian say, ‘Sonabitchee.’
“Q. Where was the Indian then? A. He was crawling over the front seat on my side and I looked back and when I looked back Stanton hit him again.
“Q. Where did he hit him? A. He hit him in the back of the head somewhere.
“Q. What happened then? A. The Indian fell out on the ground on his head and shoulders.
“Q. Then what happened? A. I reached down and got hold of him by his arm and helped him up and Stanton scooted out of the car and went to crying and said he would kill any son-of-a-bitch over his mother.
“Q. How did he get out of the car? A. He scooted out of the seat under the steering wheel and came out on the left side and went to crying.
“Q. When he got out of the car where were you and the Indian? A. I took hold of the Indian’s arm and helped him up and then .Stanton hit him again.
“Q. Could you see where he hit him then? A. He hit him in the back of the head somewhere; I had my back to him and couldn’t see where he hit him.
“Q. What did the Indian do? A. He staggered off a couple of steps and fell down.
“Q. Then what took place? A. I said, ‘Let’s pick him up and take him to' the house,’ and Stanton got back in the car and said, ‘Let him lie there and he will sober up and go to the house,’ and Stanton said, ‘Come on, let’s go,’ and we got in the car and left.”

This all happened between 8:30 and 9 o’clock on July 9, 1935. The witness and defendant then drove home and later in the day, with their wives and the children of defendant, drove to Wagoner and returned home that night; the witness next morning returning to his home in Dodge City, Kan., not knowing of the death of deceased until he was arrested there and put in jail and afterwards brought back to Wagoner county. He was afterwards used as a witness by the state in this case.

A witness by the name of Stute Sequoyah, an Indian, testified that the deceased was living at his home and that he left there on the morning of July 9, 1935, for the purpose of chopping wood, and testified that when he returned home on the afternoon of that day about 5 o’clock, he found the body of the deceased lying on the ground at a gate about two hundred yards from his house. He was dead at that time.

The testimony showed that it was one of the hottest days of the summer of 1935. Upon the discovery of the body a doctor was called and arrived there after dark, at about 8:30 o^clock. The material part of the doctor’s testimony was as follows :

“Q. What did your examination show? A. The principal thing was a contusion of the neck, a wound on the neck, one on his right wrist I think and a bruise on his side, on the side of his chest.
“Q. Were there any bruises about the face? A. There was a skinned place on his forehead but I wasn’t able to determine whether it was just a slipping of the skin or what; I don’t know whether that bruise occurred before death or afterwards.
“Q. Which bruise was that? A. The one on the forehead.
“Q. The wound on the neck, which side was that on? A. On the right side.
“Q. About how large was that? A. Well the skin was knocked off about the size of a quarter nearly.
“Q. Could you tell whether that had been made before death? A. Yes sir, that one I could tell it occurred before death; it had bled some and was dry.
“Q. State whether or not, in your opinion, that wound was caused by a bare fist or by a blunt Aveapon or instrument. A. It must have been some kind of an instrument; a bare fist would hardly do that; it couldi have been, hut it knocked the skin off any way.
“Q. How about the wound on the right Avrist? A. The skin Avas knocked off and it had bled a little.
“Q. Could you say whether or not that had been made before death? A. Yes, sir, it was made before death.
“Q. The body, was it lying near the road? A. It was in the section line right near the road.
“Q. Did you notice the road along there as to whether it was rocky or not? A. No, sir; I didn’t pay much attention to it.
“Q. You couldn’t tell whether or not the bruise on the side was made before death or not or the one on the forehead? A. The one on the forehead I couldn’t tell but the one on the side had the appearance of having been made before death.
“The Court: Q. Was that underneath the clothing? A. Yes, sir; just a bruise.
“Mr. Broaddus: Q. About what age would you say the deceased was? A. Apparently about 60 or 62, just guessing, at it.
“Q. How long had he been dead, in your opinion, when you saw him? A. Ten or eleven hours is the best I could tell.
“Q. Assuming he had been dead about ten or eleven hours and the blow on the neck had been inflicted about 9:00 or 9:30 that morning, what, in your opinion, was the cause of his death? A. My opinion was that the wound caused his death; that was my own opinion.
“The Court: Q. The bruise on his side, was the skin broken there? A. I don’t think it was.
“Q. That bruise or abrasion which suggested some application of external force, could that have been caused by a fist or would it take some blunt instrument to do that? A. Well it could have been caused by either one.
“Mr. Broaddus: That’s all.
“Cross-examination by Mr. Brown:
“Q. Was Mr. Hersman there with you when you made your examination? A. Yes, sir.
“Q. At that time you didn’t know anything about the manner in which he had received his wounds? A. No, sir.
“Q. You just looked at the body? A. Yes, sir.
“Q. And this wound in the right side under the right arm, was the most severe wound? A. No, sir; the one on the neck was the most severe.
“Q. That was on the right side of the neck? A. I think so.
“Q. Did you make any post-mortem or did you go just by your observations of the wounds? A. That’s all. I felt there was a necessity of making a post-mortem but the body was so decomposed that it wouldn’t be a very pleasant job and I didn’t find any instruments there to make the examination with.
“Q. A post-mortem would have revealed the cause of death much more accurately? A. Yes, sir.
“Q. Without a post-mortem it was just partly guess work? A. Yes, sir; partly guess work.
“Q. A post-mortem would have revealed whether or not the injury to the neck or side had brought about his death or whether the heat had had something to do with it? A. Yes, sir; it probably would have.
“Q. If he had died on account of there being such a high humidity that day and such a high temperature— the humidity that day was about 80? A. I don’t remember what it was.
“Q. But if be bad died on account of the temperature and the humidity a post-mortem would ha,ve or might have shown a different result than if he had died by wounds? A. Yes, sir, it might have but the only way you could have determined if he had died of the heat you would have to make a lot of laboratory examinations to do that but a post-mortem would have revealed any haemorrhage in the brain.
“Q. But the blow or injury to the neck, if that had produced death pt would have produced a haemorrhage? A. Possibly a haemorrhage in the brain, yes, sir; his neck wasn’t broken.
“Q. And the first thing to look at to determine the cause of his death would be to make an examination of his brain? A. Yes, sir, that would be the best.
“Q. That would give you the most satisfactory answer as to the result of the injury? A. Yes, sir; it possibly would.
“Q. Did you know the deceased personally? A. No, sir.
“Q. Assuming that a man 65 years of age and who on that occasion or about 8:00 or 9:00 o’clock that morning had drank considerable liquor, four drinks or more of corn whisky and then had engaged in some physical exercise like pushing a car, trying to start it, and taking into consideration the heat and the humidity that day, and knowing all of those things and then finding the deceased had. died about the time you concluded that he did, would it be reasonable to conclude that he died from the effects of those things, that is, from the effect of the heat and the humidity and the physical exercise and the liq nor and also considering his age? A. Yes, sir; that could be possible.
“Q. In a person of that age and the combination of strong drink and strong physical exercise, would it be reasonable to conclude that those things had caused his death? A. Yes, sir; it sometimes occurs that way.
“Q. Has your experience shown you occasions like that or do you know of occasions like that? A. Well, I don’t know if I could answer that that way or not but all those things could have had an influence on it.
“Q. You know from your medical files don’t you, that the combination of the elements of heat and humidity and liquor and physical exercise will sometimes cause or produce heat prostration? A. Yes, sir; it will produce heat prostration.
“Q. That time of the year in this climate is the most common time for heat prostrations? A. Yes, sir.
“Q. And the element of strong liquor adds to1 that? A. Yes, sir.
“Q. And strong exercise like pushing a car is a further element to be considered, is it not? A. Yes, sir: it is.
“Mr. Brown: I believe that is all.
“Redirect examination by Mr. Broaddus:
“Q. Assuming that you saw the deceased about 8:00 or 8:30 that evening and that he was alive about 9 :00 or 9 :S'0 and that whatever exercise he had done before that was done about 8:30 or 9:00 o’clock, as much as a half hour or at least 15 or 20 minutes before that and he was alive at 9:00 or 9:30, then in your opinion, was the cause of his death the blow or injury he received or was it due to heat prostration? A. I would believe that it would be due to> the effects of the blow.
“Mr. Broaddus: That’s all.
“Recross-examination by Mr. Brown:
“Q. If you had made a, post-mortem examination you could be much more certain about that? A. Yes, sir; I could be.
“Q. Did the county attorney request a post-mortem? A. I don’t remember, but I believe he did.
“Q. You know of another beat prostration on that same day don’t you? A. I beard of it.”

Witnesses Lillie Pumpkin and Luella Henson testified that they lived at tbe borne of Stute Sequoyah and that deceased lived there also-; that after breakfast on tbe 9th of July, tbe deceased left home for tbe purpose of cutting wood. Tbe two girls afterwards went to' Wagoner and came home that night with tbe defendant and tbe witness Levi Peyton. They corroborate tbe testimony of Levi Peyton in practically every respect up to the time of their getting out of the car and walking home about 6:30 in tbe morning. One of tbe girls testified that she saw tbe automobile drive up to tbe gate about 8:30 or 9 in tbe morning and saw tbe defendant and deceased drinking whisky and saw tbe defendant strike tbe deceased. She said she was looking out of tbe window and that it was about 200 yards away. The defendant, testifying in bis own behalf, corroborated tbe evidence given by tbe witness Levi Peyton up to tbe very time of tbe difficulty. He testified that at tbe time he was so drunk that be bad no recollection as to what happened and bad no recollection of striking tbe deceased and knew nothing about it until tbe nest day when tbe officers came to take him before the coroner’s jury.

Upon tbe question of intoxication as a defense, this court has in many opinions discussed this question giving the authorities^ not only from the various states, but from the Supreme Court of the United States, and the leading text-writers. These cases distinguish between voluntary and involuntary intoxication and insanity caused by constant intoxication, and as the court expresses it: “Intoxication cannot operate as an entire exemption from criminal responsibility, and it is not conclusive against the existence of a criminal intent. At the utmost it only extenuates the erime from murder to manslaughter, and it does not do this as matter of law. Whether the accused was so intoxicated as to render him incapable of entertaining the specific intent necessary to constitute the crime is a question of fact for the jury.” See Cheadle v. State, 11 Okla. Cr. 566, 149 Pac. 919, 922, L. R. A. 1915E, 1031; Collier v. State, 17 Okla. Cr. 139, 186 Pac. 963, 12 A. L. R. 839; Copperfield v. State, 37 Okla. Cr. 11, 255 Pac. 590; Huffman v. State, 24 Okla. Cr. 292, 217 Pac. 1070; Perryman v. State, 12 Okla. Cr. 500, 159 Pac. 937.

The evidence in this case shows that the deceased came to his death by reason of a drunken brawl. The evidence clearly shows that the defendant and deceased were drunk at the time of the difficulty. The quarrel between them came up about nothing; there was no ill will nor malice on the part of either of them. The only eyewitness, Levi Peyton, did not see any instruments being used by the defendant in striking deceased. He used only his bare fists.

The testimony of the doctor was uncertain as to the effect the wounds on the body of the deceased would have in producing death, and there seemed to' be a doubt in his mind as to whether deceased came to his death from blows or from the effects of the sun’s rays and the whisky that the deceased had drunk. He did testify, when asked as to his opinion as to what caused the death, that: “* * * My opinion was that the wounds caused the death. That was my own opinion.” The evidence showed that no post mortem was held in this case and the doctor’s testimony that a post mortem would have shown whether deceased came to his death by reason of the blows.

The statute of this state, section 2223, Oklahoma Statutes 1931 (21 Okla. St. Ann. § 711), defines “manslaughter in the first degree,” as follows:

“Homicide is manslaughter in the first degree in the following cases:
“First. When perpetrated without a design to' effect death by a person while engaged in the commission of a misdemeanor.
“Second. When perpetrated without a design to effect death, and in a heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon; unless it is committed under such circumstances as constitute excusable or justifiable homicide.
“Third. When perpetrated unnecessarily either while resisting an attempt by the person killed to commit a crime, or after such attempt shall have failed.”

Applying the above statute, and after a careful consideration of the record in this case, and the fact that the jury has passed upon the same and found the defendant guilty, it is our opinion that justice would be done by modifying the judgment to the minimum punishment provided for manslaughter, that of four years. There was a sharp conflict in the testimony as to- the state of intoxication of the defendant at the time of striking- the deceased. The jury saw the witnesses and heard the testimony, and whi] e it is not strong, especially as to whether the deceased died as the result of the blows inflicted by the defendant or from the effects of drinking intoxicating liquor and lying in the hot sun, yet we believe that the ends of justice have been met by the reduction of this penalty as above indicated. Three witnesses testified that the defendant was drunk, two of them, seeing him just before he went to the place where deceased was found and one seeing him just after he had left there.

We have carefully examined the authorities cited by defendant upon the proposition that the court erred in admitting incompetent testimony by permitting the state to offer the coroner and certain persons wbo' were on the coroner’s jury, and allowing them to testify in rebuttal to testimony given by the defendant. While the verdict of the coroner’s jury might not have been admissible, as shown by the authorities cited, New York Life Insurance Company v. Gibbs, 176 Okla. 535, 56 Pac. (2d) 1179; Spiegel’s House Furnishing’ Co. v. Industrial Commission, 288 Ill. 422, 123 N. E. 606, 6 A. L. R. 540, we think, however, that these cases do not cover the point involved in this case. The evidence here was offered in rebuttal of that given by the testimony of the defendant, and the authorities hold that evidence thus given in rebuttal is clearly admissible. See 28 Ruling Case Law, 640; Pollard v. State, 201 Ind. 180, 166 N. E. 654, 84 A. L. R. 779; Hollywood v. State, 19 Wyo. 493, 120 Pac. 471, 122 Pac. 588, Ann. Cas. 1913E, 218; People v. Devine, 44 Cal. 452; People v. Smith, 134 Cal. 453, 66 Pac. 669.

The courts are not in harmony as to whether this evidence is admissible when offered by the state as a part of its evidence in chief, but as rebuttal testimony we think under the law the evidence was properly admitted.

It is therefore ordered that the judgment in this case be modified and the sentence reduced to four years in the penitentiary, and as modified the judgment is affirmed.

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


text:
    W. H. DYER v. STATE.
    No. A-9155.
    April 9, 1937.
    (66 Pac. [2d] 1104.)

      J. A. Shirley, for plaintiff in error.
    Mac Q. Williamson, Atty. G-en., and B. W. Carter, Co. Atty., for the State.
   BAREFOOT, J.

The defendant was charged with the unlawful possession of intoxicating liquors in Bryan county. He was tried, convicted, and given a fine of $50 and 30 days in jail, and has appealed to this court.

The evidence reveals that the defendant was engaged in the hotel business at Durant; that adjoining his hotel was a small residence which he owned and had rented to a man by the name of Turner. The officers were near the hotel and saw suspicious circumstances. One officer hid behind a fence and another went to get a search warrant for the purpose of searching the hotel. While he was away, the officer behind the fence saw the defendant and another party carry two boxes from the hotel to the residence occupied by Turner. When the officer returned they went to' the Turner residence and informed him of what they had seen. Turner asked them to come in, and showed them where the whisky was. They found 41 bottles of bonded whisky in boxes, just as the officer had seen carried there.

Turner, at the hearing on the motion to suppress evidence, and at the trial, testified that he had no objection to the searching of his residence; that the whisky did not belong to him, and was brought there only a short while before by the defendant and another party, and that this other party had said that he wanted to leave it there for a little while, as the officers were going to shake them down at the hotel. That it did not belong to him, but belonged to Mr. Dyer. Turner’s wife also testified to' the defendant bringing the liquor there after her husband had gone to bed, and just as she was about to retire. She stated this other party said the whisky did not belong to him but belonged to Mr. Dyer, and that the statement was made in defendant’s presence.

The defendant presented a motion to suppress the evidence in this case. This motion was overruled, to which defendant excepted. The search warrant did not cover the residence in which the witness Turner lived, but only covered the hotel. The finding of the liquor was not the result of the search warrant, but by reason of the officers seeing it carried from the hotel to the Turner residence. The defendant did not make any defense in this case, and did not deny these statements.

Under the holdings of this court in many cases, the right of search and seizure is personal and one cannot object to> the searching of another’s premises if there is no objection on the part of the one whose premises are searched. This is true even though property is found belonging to defendant and for the possession of which he is afterwards prosecuted. Williams v. State, 35 Okla. Cr. 171, 249 Pac. 433; Klaber v. State, 35 Okla. Cr. 238, 250 Pac. 142; George Hardy v. State, 35 Okla. Cr. 124, 248 Pac. 874; Brannon v. State, 39 Okla. Cr. 207, 264 Pac. 835; Bailey v. State, 39 Okla. Cr. 159, 263 Pac. 1114.

The Supreme Court of this state, in the case of Chanosky et al. v. State et al., 52 Okla. 476, 153 Pac. 131, 132, says:

“The neighbor of a man whose house had been searched has no right to> complain that the search was under a void process; that is a question purely personal to him [the party whose house was searched], and which he can raise and insist upon, but which his neighbors and strangers cannot raise for him. If a neighbor had property, which rightfully belonged to him, seized in such search, he could set up his claim to the property, and would be entitled to recover it, regardless of the fact as tO' whether the process is valid or void. And since his rights would be the same under either, he would have no interest in the character of the process, and could not be heard upon that question.” The defendant complains of certain' instructions, but an examination of the record shows that the only objections to the instructions by the defendant were that “That defendant takes exceptions to every instruction given by the court.”

This court has held in many cases that such general exceptions to the instructions are insufficient, and that the same cannot be considered, only to see that no fundamental error has been committed by the trial court in all of the instructions. See Buck v. Territory, 1 Okla. Cr. 517, 98 Pac. 1017; Killough v. State, 6 Okla. Cr. 311, 118 Pac. 620; Roth v. State, 52 Okla. Cr. 15, 2 Pac. (2d) 595; Maddox v. State, 12 Okla. Cr. 462, 158 Pac. 883.

The objection is made to certain testimony as being hearsay. An examination of the record shows that no exceptions were taken to the introduction of this testimony.

We have carefully examined the record and are of the opinion that the defendant received a fair and impartial trial, and that the judgment of the county court of Bryan county should be affirmed.

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


text:
    CHARLIE SANDS et al. v. STATE.
    No. A-9082.
    April 9, 1937.
    (67 Pac. [2d] 62.)
    John P. Thomas, S. R. Harper, and John W. Tyree, for plaintiffs, in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiffs in error, for convenience hereinafter referred to as the defendants, were jointly tried with Buby Herring; were convicted and each of the defendants, Charlie Sands and Leon Siler, found guilty and their punishment assessed at death by electrocution. Motion for new trial was filed, considered, and overruled, and the defendants Sands and Siler appeal.

The record in this case is very voluminous; many pages of the testimony taken over repeated objections and incorporated in the record are wholly immaterial to an opinion in this case, and should not have been gone into by the trial court. The prosecution seems to have believed that it was necessary to' prove the crimes committed or attempted to have been committed by the defendants Sands and Siler prior to the crime committed for which they were on trial.

In substance, the testimony material in this case is that Sands and ,Siler had both been inmates of the state penitentiary; Siler was released from the penitentiary on March 15, 1935; and Sands was released on May 25, 1935; they got together at or near the city of Seminole and started west toward Elgin, using stolen cars to make the trip. According to the statement of one of the defendants, they left Seminole with the intention of robbing a bank; they went to Fletcher, and from Fletcher to Heald-ton, accompanied by the wife of Siler; at Healdton Buby Herring' joined the party and they returned to a relative of one of the defendants near Fletcher. They left Fletcher the morning of May 31, 1935, driving toward the town of Elgin; somewhere along the road in helping a party out of the mud the car they were driving stuck in the mud, and while they were pushing the car out a couple drove up in a Ford V 8; the defendants took this car from the parties and drove into Elgin and robbed the Bank of Elgin. The defendants robbed the Bank of Elgin on May 31, 1935; as they fled from the bank they were pursued by officers and a posse of citizens; a few miles from El-gin tbe defendants ran the Ford V 8 into' a pasture near some brush and abandoned the car, tailing the money and guns with them; one of the men in pursuit discovered the car, and in company with another of the pursuing posse examined it, and could not see whether any one was in the car; they fired a shot into the woods and in return were fired on by the robbers. The robbers took refuge in a small farm house, which was the home of the Medrano family. After the bandits had taken possession of the Medrano home, they advised the family and other parties visiting in the home if they would keep quiet they would not get hurt.

One of the officers asked Mrs. Medrano if she had seen anything of the bandits and she told them they caught a car and had gone on. After some delay, the officers went to the house and asked for water, and Mrs. Medrano put the bucket out of the screen door and they went to the well and got water.

In the meantime one of the bank robbers, one of the defendants in this case, had gotten possession of Mr. Med-rano’s shotgun and was sitting on a box by the door leading from the bedroom to the kitchen with the gun in his hand. The other defendant had a sawed off shotgun and a pistol. The testimony further shows that after the officers got the water, one of the deputies, J. E. Wilson, the deceased, remarked that, “I believe I will go look through the house,” and went in the door leading to the kitchen. Another officer by the name of Deeds followed him. Immediately after Wilson stepped into the room a gun fired and Wilson fell. The shooting then began from the inside and outside. Many shots were fired, and both Sands and Siler were wounded.

In the meantime, while the shooting was going on, Mrs. Medrano got her child and made her way to' the barn. One or more shots were fired into' the bam. The Ambrose family, who was visiting, and Mr. Medrano were compelled to> lie on the floor. About the time the officers entered the house where the bank robbers surrendered, after being wounded by the officers, Mr. Medrano was in the house and was seriously wounded, and Medrano was rushed to the hospital, where he died later on.

There is some conflict in the testimony as to' whether Medrano was wounded by one of the bank robbers or by the shots from the outside during the firing on the home of Medrano1. Both the defendants, Sands and Siler, testify. They admit the robbing of the bank; admit being-pursued by the officers and the posse of citizens; admit abandoning the car they had driven to Elgin when they robbed the bank, in the pasture near the timber; they admit taking possession of the Medrano home where his family was, and where the members of the Ambrose family were visiting, and told them to' keep quiet, and that if they would do so, they would not be harmed.

The testimony discloses that in discussing what would happen if the officers came, one of the defendants stated he would kill or shoot the first officer that came into the house. The defendants, in their testimony, admitted the shooting, that there was quite a gun battle in and around the Medrano home. The only justification they offer is they fired at the officers to keep the officers from killing them. They admit they were fugitives, trying to get away from the scene of the robbery in Elgin. They offer no* justification for their acts in killing the deceased Wilson other than they did so to keep the officer from killing them.

The foregoing is all of the testimony that the court deems necessary to incorporate in this opinion.

The defendants, in their petition in error, allege 21 errors committed by the trial court which they deem sufficient to- warrant a reversal of this case. All of the errors assigned are discussed together by the defendants. It is urged by the defendants that they shot the deceased Wilson in self-defense to avoid being killed by the officers and the posse; that*they were not allowed to surrender for the reason, as the defendants contend, the officers and posse were pursuing them for the purpose of killing them. It is not disputed that the defendants, accompanied by the wife of Siler and Ruby Herring, robbed the Bank of Elgin, and after the robbery fled from the scene of the robbery pursued by a hastily organized posse; they secreted themselves in a wooded creek bottom a few miles from the scene of the robbery.

The defendants further urge that from the demonstration on the part of the officers they believed it was their intention to pursue them and kill them without allowing them to surrender; that they had taken refuge in the farm home of Medrano ; that the officers and posse were guilty of wanton, reckless, and criminal conduct at the house of Medrano before the arrest of the defendants; that the officers knew there were people in the house, but notwithstanding the knowledge of the officers and posse that the members of the Medrano and Ambrose families were in the house they recklessly fired into' the house, putting in danger the lives of the two families, and defendants insist that when Mrs. Medrano came out of the house with her child she was fired upon as she went to the bam. They urge in their argument that after they were wounded the officers came to the house or shot into' the house, wounding Mr. Medrano, the head of the house in which they were located, and insist they did not have a fair and impartial trial.

An examination of this record clearly shows that many questions were gone into by the state wholly immaterial and unnecessary for the purpose of proving the crime of murder against the defendants, and the question gone into as to the defendants committing other crimes, while immaterial to the issues being tried, is a question for this court to determine under all the facts' and circumstances, as to' whether or not the defendants were deprived of a fair and impartial trial.

In Rhea v. Territory, 3 Okla. Cr. 230, 105 Pac. 314, 315, this court in the fifth paragraph of the syllabus said:

“While it is true that, as a general proposition, a defendant is entitled to a trial upon legal evidence alone, yet it is equally true that the admission of incompetent evidence which would not have prejudiced the defendant is not ground for reversal and constitutes harmless error.”

In subdivision “b” of paragraph 5, of Rhea v. Territory, supra, this court stated:

“Although evidence may be improperly admitted, against the defendant, on account of which a conviction would be reversed, yet, if the defendant takes the witness stand and testifies to' the same thing, the error in receiving the other evidence will become harmless, and then will not be ground for reversal.”

In this case the defendants in their testimony, in substance, admit all of the crimes and actions inquired of by the prosecution in the trial. No> denial of any of the general facts gone into or attempted to be brought out by the state was made by the defendants, and the testimony clearly shows that from the time the defendants got together near Seminole after they were released from the penitentiary they had in mind the robbing of a bank somewhere in the western part of the state; they started out with that purpose and continued their lawlessness until they did rob the Bank of Elgin, fled from the scene of the robbery, and secreted themselves in the home of Medrano, and when the deceased Wilson came to the home they shot him to death.

In White v. State, 34 Okla. Cr. 424, 246 Pac. 1114, in the second paragraph of the syllabus this court said:

“A judgment of conviction will not be reversed on the ground of improper admission or exclusion of evidence, unless after an examination of the entire record it appears that there has probably been a miscarriage of justice or a substantial violation of some constitutional or statutory right of the defendant.”

In Rogers v. State, 9 Okla. Cr. 277, 131 Pac. 941, this court said:

“The admission or exclusion of testimony which, in the light of subsequent developments during the trial, indicates conclusively that no injury did or could have resulted is not ground for reversal of a judgment.”

An examination of the record in this case shows that an effort on the part of the state to prove or inquire into certain facts, actions, and crimes of the defendant was not only immaterial but incompetent, and the trial court should have directed the prosecution to refrain from further seeking to bring out incompetent and immaterial facts, yet, in the light of the defendants’ testimony wherein they admit all of the important and material facts in this case, except they urge they shot the deceased to keep from being killed, the admission or exclusion of the testimony, in the light of subsequent developments during the trial, did not prejudice the rights of the defendants, or deprive them of a fair and impartial trial.

In Ford et al. v. State, 23 Okla. Cr. 46, 212 Pac. 444, this court in the second and third paragraphs of the syllabus said:

“2. Before the court is authorized to reverse a judgment of conviction because of the improper admission of evidence, it is necessary that the court, after a consideration of the entire record, must be of the opinion that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right of the defendant.
“3. Where incompetent evidence is permitted to' go before the jury, and such facts are otherwise proved in a competent manner, the error occasioned by the admission of the incompetent evidence becomes harmless.”

In Maloon v. State, 38 Okla. Cr. 34, 259 Pac. 173, in the first paragraph of the syllabus this court said:

“An error in the rejection of evidence is not ground: for a reversal, unless after an examination of the entire record it appears to this court that the same probably resulted in a miscarriage of justice or deprived defendant of a substantial right.” Mayse v. State, 38 Okla. Cr. 144, 259 Pac. 277.

In State v. Walters, 105 Cr. 662, 209 Pac. 349, the Supreme Court of Oregon in the first paragraph of the syllabus said:

“Where defendant and another committed several robberies, and, when accosted by the policeman searching for the guilty parties, defendant shot the policeman, and there was evidence that he had said he would not be taken, evidence of the robberies was admissible on a trial for murder, as tending to show motive.”’

The evidence in this case shows that one of the defendants, after they came to the Medrano house, stated: in substance if not in exact language that he would shoot the first officer that came in the house, and it is undisputed the defendants, or one of them did shoot the first officer that entered the house.

It is clear from the record that the defendants fired the shot that took the life of the officer Wilson, in order to prevent an arrest by the officers of the law. The crime for which the defendants were being tried arose out of the robbery of the Bank of Elgin. The killing would not have occurred if the robbery of the bank had not been committed, as the defendants were pursued from the time of the robbing of the bank up to the time they arrived in the Medrano' home, and the officers surrounded the house.

The record discloses that both the defendants were former convicts, and from the time they were released’ from the penitentiary had in mind robbing a bank; that when they left Seminole a few days before this robbery occurred, along the route they traveled they committed crime after crime until they reached the Bank of Elgin and robbed it, and then fled from the scene and took possession of the Medrano home and concealed themselves in the house, and followed it up by taking, the life of Wilson, the deputy sheriff. The defendant’s counsel ably defended them and did all they could to protect the rights of the defendants and save them from the electric chair.

The crime of which the defendants were charged was a cold-blooded murder, committed for the purpose of trying to escape from the charge of robbing a bank. Not a single mitigating circumstance appears in the record. No one attempts to justify or can justify the acts of the defendants. The record shows the defendants to be criminals of the vilest kind and character; men who did not hesitate to take the life of a party if from their view-, point they deemed it necessary in order to make their escape from the crime committed by them, for which the officers and posse were pursuing them.

It is needless, and would serve no- useful purpose to prolong their opinion further; suffice it to say that the defendants were accorded a fair and impartial trial. Many improper questions are contained in the record, but after a careful consideration and study, we hold there are no reversible errors in the record.

The evidence is sufficient to sustain the charge of murder, and the sentence imposed on both of electrocution. The judgment is affirmed.

The original time for the execution having passed during the pending of this appeal, it is considered, ordered, and adjudged by this court that the judgment and sentence of the district court of Comanche county be carried out by the electrocution of the defendants by the warden of the state penitentiary, at McAlester, Okla., on Friday, June 11, 1937.

DOYLE and BAREFOOT, JJ., concur.


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    ROBERT HOLLAND v. STATE.
    No. A-9229.
    April 9, 1937.
    (67 Pac. [2d] 58.)

      J. R. Charlton and C. E. Robertson, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error, Robert Holland, was 'Convicted of murder in the district court of Washington county upon an information filed in said district court March 7, 1936, charging that in said county on or about 30th of December, 1935, he did kill and murder one Henry Cobb by shooting him with a pistol. The jury fixed his punishment at death. A new trial was denied and in pursuance of the verdict of the jury he was sentenced to suffer the punishment of death by electrocution as provided by law.

From the judgment pronounced and entered June 3, 1936, he appealed by filing in this court on November 17th a petition in error with case-made.

It appears, that the homicide was committed on the night of December 30, 1935, in the city of Bartlesville; that the deceased, Henry Cobb, a white man, was shot and killed by the defendant, Robert Holland, a colored man.

When the case was called for trial, the defendant filed a challenge to the array and motion to. quash the panel of jurors upon the ground of exclusion of negroes from juries in Washington county; that the defendant, a colored man, was discriminated against on that account and that no colored man was summoned to serve on the jury panel from which jurors were selected to try the case; and that uO' negroes or persons of African descent had ever served on any jury in Washington county, having been excluded solely because of their race and color.

The grounds of the defendant’s challenge to the array and motion to quash the jury panel are in part as follows:

“That said Eobert Holland is a person of African descent known and designated as a Negro:
“That pursuant to the order of the judge of the district court of Washington county, the clerk thereof did draw from the jury box of said district court 36 names theretofore placed in the jury box by said court- clerk, from the list certified to him by the jury commissioners of said county.
“This defendant states that he is advised and believes that all of the 36 names drawn by said clerk as aforesaid are the names of white persons, and that all the names remaining in said jury box after said thirty-six were drawn, were and are the names of white persons.
“Further, that in Washington county, long prior to the time of the selection of the current jury list aforesaid and at all times since, there had been, were, and still are numerous Negro citizens of the state of Oklahoma and residents of said county who in every respect had been, were, and still are qualified to* serve as petit jurors in said county; nevertheless, this defendant states that he has good and sufficient reason to- believe, and does verily believe, and therefore avers that the said jury commissioners in selecting the current jury list aforesaid, unlawfully and in violation of their respective oaths of office and of the Constitution of the United States and the Constitution of Oklahoma, did exclude from said list all qualified Negroes, members of the colored race and of African descent, solely and only on account of their race, color and previous condition of servitude and for no other reason.
“Further, that at all times it has been, was, and still is the custom in said Washington county to' use white men exclusively for petit jury service in any and all cases, including trials of felonies; and in selecting said current jury list, the said jury commissioners followed said custom, and excluded qualified Negroes from said list, because of and on account of their race, color and previous condition of servitude.
“That by reason of the unlawful exclusion of all qualified Negroes from the current jury list aforesaid, the defendant herein, Robert Holland, a Negro, has been greatly prejudiced and has been denied due process and the equal protection of the laws in violation of the Constitution of the United States, and the laws of the United States enacted pursuant thereto, and the Constitution of Oklahoma and the laws of Oklahoma enacted pursuant thereto.”

The motion concludes with a prayer that:

“A hearing be had upon his said motion, and upon consideration thereof, the panel of jurors summoned in this court be quashed and discharged, and that a panel be summoned according to law, and said defendant will ever pray.”

In support of the motion to' quash the panel, appellant called as witnesses the jury commissioners, the court clerk, and Thomas Abner Garcia, a negro, then it was stipulated that eight other negroes would testify to the same effect as witness Garcia.

Russell Cantwell, a jury commissioner and Bartles-ville Chamber of Commerce secretary, testified that the population of Washington county was approximately 28,-000, 10 per cent, of which consisted of negroes, that in selecting the current jury list from the tax rolls, he did not discuss with the other commissioners whether negroes would be placed on the jury list, that he was acquainted

with many negroes in the county. He was then asked: “With your knowledge of the qualifications of a juror, do you know any negroes in Bartlesville, who in your opinion possess the qualifications of jurors?” And answered: “In my opinion, yes, sir.”

He further testified that he did not exclude negroes from the jury list because they were not of good moral character, or justices of the Supreme Court or Criminal Court of Appeals, or judges of courts of record in the state, or peace officers, licensed attorneys, or habitual drunkards, or afflicted with bodily infirmities amounting to a disability, or who1 had been convicted of any infamous crime or ha.d served a term of imprisonment in the penitentiary. That he had lived in Bartlesville ten years and served as a juror the previous year, that he had never known of a negro sitting on a jury in the county.

Al Pettigrove, jury commissioner, testified he had: lived in Washington county 25 years, that he did not remember ever seeing a negro on any jury in this county; that he had not selected any negroes on his list, though he knew some who were eligible for jury service.

That he did not exclude any person from the jury list because of race or color.

W. E. Lee, jury commissioner, testified he had lived in Washington county 35 years, had been a district court bailiff, a justice of the peace for eight years, often at other times had occasion to be present in court, but never did see a negro serve on a jury in Washington county, that he selected about 75 names on the list and did not exclude any man from that list because he was a negro.

Robert E. Lee testified that he had been district court clerk during the last seven or eight jury terms of court, and knew all of the jurors in attendance, that he did not see a negro among the jurors, and never did see a negro juror in any of the courts of Washington county.

Thomas Abner Garcia, a negro, testified that he was a property owner and taxpayer and resided in Washington county, and had lived in Oklahoma since 1923, formerly lived in Texas, where he had served as a juror, that he was widely acquainted with members of his race in the county, and knew 25 or SO who were taxpayers, and did not know of any negroes who had served as a juror.

It was then stipulated that eight other negroes who had been sworn as witnesses would testify to the same effect as the witness Garcia.

There was no testimony offered on the part of the state. The court, after hearing the argument of counsel, announced: “I am constrained to overrule this motion.” •Exception allowed.

Upon the record before us and the undisputed facts as shown by the evidence offered in support of the defendant’s challenge to the panel, and motion to quash duly verified by the oath of the defendant, we are of the opinion that the defendant was denied due process and equal protection of the laws.

It is well settled that a denial to citizens of the African race solely on the ground of their race and color of the right or privilege accorded to whiter citizens of participating as jurors in the administration of justice is a discrimination contrary to the Fourteenth Amendment of the Constitution of the United States, which ordains that:

“Section 1. All persons bom or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Carrick v. State, 41 Okla. Cr. 336, 274 Pac. 896; Smith v. State, 4 Okla. Cr. 328, 111 Pac. 960, 140 Am. St. Rep. 688.

The Supreme Court of the United States has repeatedly held that discrimination against persons qualified to serve as jurors, solely because of their race or color, is a denial of the equal protection of the laws guaranteed by the Fourteenth Amendment, and that such a discrimination entitles a person of the race against which it is practiced to interpose a challenge to the jury panel when he is a party to an action to be tried before a jury drawn from the panel. See Martin v. Texas, 200 U. S. 316, 319, 26 S. Ct. 338, 50 L. Ed. 497, 498.

In the case of Hollins v. State of Oklahoma, 295 U. S. 394, 55 S. Ct. 784, 79 L. Ed. 1500, on appeal from this court [Hollins v. State, 56 Okla. Cr. 275, 38 Pac. (2d) 36], the opinion per curiam, is as follows:

“Petitioner was convicted in the district court of Ok-mulgee county, Okla., upon an information charging rape. At the trial, petitioner challenged the jury panel upon the ground that negroes for a long period had been excluded from jury service in that county solely on account of their race or color, and that this discrimination had' deprived petitioner of the equal protection of the laws in violation of the Constitution of the United States. Evidence was taken by the trial court upon this issue, the challenge was overruled, and petitioner excepted. Upon appeal, the federal question was presented to the Criminal Court of Appeals and was decided against petitioner.. This court granted a writ of certiorari, April 1, 1935, 294 U. S. 704, 55 S. Ct. 636, 79 L. Ed. 1240.
“From' its examination of the evidence, the court is of the opinion that the case calls for the application of the principles declared in Neal v. Delaware, 103 U. S. 370, 397, 26 L. Ed. 567 [574], and Norris v. Alabama, 294 U. S. 587, 55 S. Ct. 579, 79 L. Ed. 1074.
“The judgment is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.”

In Norris v. Alabama, above cited, the fifth syllabus reads as follows:

“Evidence, upon a motion to quash a trial venire composed solely of white men, in a criminal prosecution of a negro, that, in a county of 46,176 population of whom 8,311 are negroes, for at least a generation no' negro had been called for jury service, that no negro was placed on the present jury roll, although there were many negroes in the county who were qualified for jury service, showing a long-continued, unvarying and wholesale exclusion of negroes from jury service, establishes a discrimination forbidden by the equal protection clause of the Fourteenth Amendment, and requires the quashing of the venire, notwithstanding general testimony by a member of the jury board that negroes were not excluded from the jury list and that in compiling the jury roll he did not consider race or color.”

Mr. Chief Justice Hughes in delivering the opinion of the court said:

“The testimony of the commissioner on this crucial question puts the case in a strong light. That testimony leads to the' conclusion that these or other negroes were not excluded on account of age, or lack of esteem in the community for integrity and judgment, or because of disease or want of any other qualification. The commissioner’s answer to specific inquiry upon this point was that negroes were ‘never discussed.’ We give in the margin quotations from his testimony.
“We are of the opinion that the evidence required a different result from that reached in the state court. We think that the evidence that for a generation or longer no negro had been called for service on any jury in Jackson county, that there were negroes qualified for jury service, that according to the practice of the jury commission their names would normally appear on the preliminary list of male citizens of the requisite age but that no names of negroes were placed on the jury roll, and the testimony with respect to the lack of appropriate consideration of the qualifications of negroes, established the discrimination which the Constitution forbids. The motion to quash the indictment upon that ground should have been granted.”

It follows from what has been said, and the foregoing authorities, that the defendant was denied the equal protection of the laws contrary to the guaranty of the aforesaid Fourteenth Amendment.

Other questions are argued by counsel, but, in the view we have taken of the one considered,. they are not important. In view of a trial before another jury, we will not comment on the evidence.

For the error indicated, the judgment of the district court of Washington county herein is reversed and the cause remanded for a new trial.

The warden of the state penitentiary will surrender appellant, Eobert Holland, to the sheriff of Washington county, who will hold him in custody until he shall be discharged or his custody changed by due course of law.

HAYENPOET, P. J., and BAEEFOOT, J., concur.


text:
    JOHN HART v. STATE.
    No. A-9250.
    April 9, 1937.
    (67 Pac. [2d] 66.)
    H. H. Brown, for appellant.
    Mac Q. Williamson, Atty. Gen., for tbe State.
   DOYLE, J.

Appellant, John Hart, was convicted in tbe district court of Love county under Penal Code, § 1931 (21 Okla. St. Ann. § 1435), upon an information in substance charging that appellant John Hart, Jim Hart, Leonard Adams, William McGill, and Otto Adams, in said county on tbe 26th day of April, 1934, did unlawfully and burglariously break and enter a storehouse, tbe property of W. M. Balthrop, located in tbe city of Marietta, in which building were about 240 sacks of com, tbe personal property of Paul Miller, with the felonious, intent to take and steal said personal property.

Upon his separate trial the jury returned a verdict finding him guilty as charged in the information and fixing his punishment at imprisonment in the penitentiary for two years. From the judgment rendered in pursuance of the verdict on July 21, 1936, he appeals and assigns as error that the verdict is contrary to the law and the evidence and that the county attorney in his closing argument to the jury made improper remarks prejudicial to the substantial rights of the defendant.

The undisputed facts are that on the date alleged, Paul Miller had a carload of sacked shelled corn stored in the Balthrop warehouse in Marietta. On the night of April 26, 1934, the warehouse was broken into, and about 200 sacks, 100 pounds each, of this com stolen.

The evidence shows that the burglary and the larceny of the corn was discovered by Mr. Miller the following morning. The sheriff of Love county was called and an investigation of the premises made. It appeared that about 200 sacks of the corn had been taken out and hauled away in a truck and trailer; corn had spilled where it had been loaded and along the highway south from Marietta, where it had been hauled. By following the spilled corn, Miller and the officers trailed the same to. the house of appellant, arriving there 7 o’clock that morning, where about 60 sacks of the stolen com were found in his barn. Appellant said he bought the corn and paid for it. The corn was positively identified by Miller and two. or three other witnesses as his property and was taken possession of by the sheriff and returned to- him.

Minnie May testified that she was living with her sons on the Hart place; that after his arrest she was at his house, and John Hart and Otto Adams were sitting on the porch; she heard him say he had taken lots of chances, but this was one case he did not see any way out; the only way out he said was he had a friend at Gainesville that had a warehouse; he could take him 10 gallons of whisky, and he would swear he bought the corn from him, and that would be the only way he could get out of this. Another time John Hart told her he was going to Gainesville and see a friend he sold whisky to and who ran a warehouse, and would see if he would swear he got the corn over there.

On the part of the defense, A. W. Mason testified that he met Joe Wood about seven miles south of Marietta, driving a truck loaded with sacked corn, going south on the morning of April 27th, between 7 and 8 o’clock; that he rode with him about a mile; that Wood asked him if he knew any one that wanted to buy corn, and he told him John Hart said he had to buy some, and Wood drove on to John Hart’s place.

Oscar Cochran testified that he was at John Hart’s place when the sheriff came; that just before that he saw John Hart pay the driver of a truck some money and the man drove off just before the sheriff came; that John Hart lives about eight miles south of Marietta.

John Pierce testified that he lived at Thackerville, met Joe Wood that morning in Thackerville a little after 9 o’clock, and was driving a truck loaded with 40 or 50 sacks of corn. Wood asked him if he needed some com; he told him he had no' money to buy; that he heard Joe Wood was killed while robbing a boxcar down in Texas.

Alf Bentley testified that he lived in Thackerville, was well acquainted with Joe Wood, now dead, and met him that morning one mile south of town; that Wood was driving a truck, stopped and asked Mm if he wanted to buy some com; and he toM him no, he was not farming.

Loma Hart, wife of John Hart, testified that Mrs. May did not come to her house and talk to her husband in her presence.

The defendant did not testify as a witness.

At the close of all the evidence the defendant demurred to' the same on the ground it was wholly insufficient to support- a verdict of guilty.

This is a companion case to those of Jim Hart v. State, 57 Okla. Cr. 372, 48 Pac. (2d) 337; and Otto Adams v. State, 61 Okla. Cr. 5, 65 Pac. (2d) 420.

As to the effect to be given in prosecutions for burglary to proof of possession of property stolen at the time of the burglary in connection with the breaking and entering, it has been held by this court that the fact of possession of property recently stolen, if such possession is unexplained, is a circumstance tending to show that the defendant is guilty of the burglary. In such a case testimony which tends to prove the commission of larceny also tends to prove the commission of the burglary; but the evidence of unexplained possession of recently stolen property would have no' more force and weight in such a case than in a casé of larceny. In either it is but a circumstance tending to show the guilt of the defendant, if established as a fact by the evidence beyond a reasonable doubt.

The rule which is recognized by the great weight of authority may be stated as follows: There is no presumption of guilt of burglary attaching to the mere possession of stolen property by the defendant, but such fact, if the alleged crime be of recent occurrence, has a tendency to prove bis guilt, and if there be other proved circumstances tending to connect him with the commission of the offense, the fact of possession thus aided, will sustain a conviction. Drew v. State, 61 Okla. Cr. 48, 65 Pac. (2d) 549, and cases cited.

In the companion case of Hart v. State, supra, we held:

“Evidence of possession of the stolen property by defendant soon after the burglary was committed, when supplemented with other facts inconsistent with the idea that the possession was honest, is sufficient to sustain a conviction for burglary.”

There is proof of. other circumstances which, taken together, are consistent with the theory of appellant’s guilt, and inconsistent with his innocence.

In this case the evidence of admissions made by this defendant, and his statement to Mrs. May, were not denied.

While there is some conflict in the testimony, it strongly tends to show the defendant’s guilt, and is amply sufficient to support the verdict.

It follows the demurrer to the evidence was properly overruled.

The alleged misconduct of the county attorney in his closing remarks to the jury is based upon a remark as shown by Exhibit A of the motion for new trial.

No objection was made or exception saved to this alleged remark, and, if made, it is not shown in the case-made, except as one of the grounds in the motion for new trial, and for this reason cannot be reviewed. Quitman v. State, 35 Okla. Cr. 245, 250 Pac. 441; Evinger v. State, 57 Okla. Cr. 63, 45 Pac. (2d) 552; Kennamer v. State, 59 Okla. Cr. 146, 57 Pac. (2d) 646.

It appears that the court correctly instructed the jury as to the law applicable to circumstanial evidence.

Our conclusion is that appellant had a fair trial and was properly convicted.

The judgment is therefore affirmed.

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