text:
    Ex parte SCOTT.
    No. A-11415.
    May 24, 1950.
    (219 P. 2d 249.)

      A. Francis Porta and Vincent Harper, El Reno, attorneys for petitioner.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., attorneys for respondent.
   JONES, P. J.

The single proposition presented by this action is whether one held in custody by reason of his arrest on a warrant issued by the Governor of Oklahoma for extradition to the State of Georgia, to answer a prosecution there pending against him for the alleged crime of issuing “bogus checks,” may introduce evidence that the prosecution in the demanding state is made in bad faith and for the purpose of collecting a civil debt.

Prior to the passage of the Uniform Criminal Extradition Act by the Oklahoma State Legislature on March 25, 1949, 22 O.S. Supp. § 1141.1 et seq., this court had uniformly held that the question of the good faith of the prosecution was always open to inquiry on habeas corpus. Ex parte Welborn, 69 Okla. Cr. 282, 102 P. 2d 624; Ex parte Cassel, 85 Okla. Cr. 4, 184 P. 2d 467. In the case of Ex parte Birch, 89 Okla. Cr. 417, 209 P. 2d 510, 512, which was an action by one sought to be extradited to another state wherein the contention was made that the prosecution was in bad faith or maliciously inspired, this court stated:

“The evidence herein was not clear, convincing, and without doubt, that the prosecution was in bad faith, or maliciously inspired.
“In addition, we call attention to the fact that at the Twenty-Second legislative session, House Bill Number 37 known as the Uniform Criminal Extradition Act was passed with the emergency clause attached and approved by the Governor of Oklahoma, on March 25, 1949, 22 O. S. Supp. § 1141.1 et seq. At the time of the institution of this action it was in full force and effect.
“Among other provisions of said act, it is provided! ‘The guilt or innocence of the accused as to the crime of which he is charged may not be inquired into by the Governor or in any proceedings after the demand for extradition accompanied by a charge of crime in legal form as above provided shall have been presented to the Governor, except as it may be involved in identifying the person held as the person charged with the crime.’ 22 O.S. Supp. § 1141.20.
“Although it is unnecessary that we construe this section of the statute, under our view of the evidence we cite the same for the reason that apparently the Legislature has forbidden the courts in any proceeding from inquiring into the guilt or innocence of the accused, except as such matter may be corollary to the question of identification of the person held to await extradition as being the person charged with the crime in the demanding State.”

A large number of the states in the Union, including the States of Georgia and Oklahoma, have adopted the Uniform Criminal Extradition Law. Under the provisions of this act, the prosecuting attorney of the demanding state must certify that in his opinion the ends of justice require the arrest and return of the accused for trial, and that the proceeding is not instituted to enforce a private claim. 22 O.S. Supp. § 1141.23. All of the extradition papers in the instant case are regular in form, including the affidavit by the prosecutor required by the provisions of the Uniform Criminal Extradition Act.

The petitioner admits that all of the papers in this proceeding are regular on their face, but bases his claim for release from confinement on the proposition that the only purpose of the attempt to remove the petitioner to the demanding state is for the purpose of attempting to force the payment of a private debt arising out of the purchase of an automobile. Petitioner offered to show by competent proof that the prosecution was instituted solely to embarrass the petitioner and to aid in the collection of a private debt. The Attorney General objected to the admission of such evidence on the ground that since the adoption of the Uniform Criminal Extradition Act this court is not authorized to inquire into the motives behind the prosecution in the sister state.

We are of the opinion that the Attorney General was correct in this contention. Insofar as we have been able to ascertain, all of the states having the Uniform Criminal Extradition Act have steadfastly adhered to the rule that on the hearing of a habeas corpus sued out for the liberation of one who is sought to be extradited for the violation of the criminal laws of another state, upon a warrant of the Governor, issued upon a requisition of the demanding state, it is not admissible to hear evidence upon or to inquire into any of the motives or purposes of the prosecution. Barranger v. Baum, 103 Ga. 465, 30 S.E. 524, 68 Am. St. Rep. 113; Ullom v. Davis, 169 Miss. 208, 150 So. 519; Spiak v. Seay, 185 Va. 710, 40 S.E. 2d 250; State v. Gregg, 68 Ohio App. 397, 40 N.E. 2d 167; In re DeFoe, 179 Or. 334, 170 P. 2d 383; also see annotations in 94 A.L.R. 1487.

In State v. Gregg, supra, it was stated:

“The question presented in this case is whether or not in a habeas corpus action in an extradition proceeding, evidence that the prosecution was in bad faith and for the purpose of collecting a civil debt is admissible.
“Prior to its repeal by the Uniform Criminal Extradition Act by the General Assembly of Ohio, on April 29, 1937, Sec. 110, G.C., relating to extradition, provided: ‘The demand or application must be accompanied by sworn evidence that the party charged is a fugitive from justice, and that the demand is made in good faith for the punishment of crime and not for the purpose of the collection of debt or pecuniary mulct * * *.’
“While Sec. 110, G.C., was in effect there were decisions in Ohio holding that evidence as to the motive and good faith of the prosecution would be received in a habeas corpus action.
******
“Sec. 110, G.C., as stated, was repealed when the new extradition law was passed which is now found in Sec. 109-1 to 109-32, inclusive, G.C.
“The Uniform Criminal Extradition Act in effect in Ohio does hot contain old Sec. 110, G.C., or any similar provision. Counsel for Mrs. Gregg, at the hearing, contended that Sec. 109-23, G.C., reenacts the substance of old Sec. 110, G.C. An examination of Sec. 109-23, G.C., shows that it applies only to what the application of a prosecuting attorney in this state to the Governor of Ohio must contain when extradition is sought from another state, of a person charged with crime in this state. Sec. 109-23, G.C., provides that such an application must contain a statement to the effect that The proceeding is not instituted to enforce a private claim.’
“New York has also enacted the Uniform Extradition Law and the statutes of New York contain a similar provision to Sec. 109-23, G.C.
“In compliance with such provision, the District Attorney of New York County, in his application to the Governor of New York to issue a requisition on the Governor of Ohio in this case, certified as follows: ‘That this application is not made for the purpose of enforcing the collection of a debt, or of avoiding the penalty of a bail bond, or for any private purpose whatever, and that if the requisition applied for be granted, the criminal proceedings shall not be used for any of said purposes.’
“It is our opinion that whatever the law may have been previous to the repeal of Sec. 110, G.C., evidence as to the motive or good faith of a prosecution is not now .admissible in a babeas corpus proceeding in an extradition matter in Obio.
“This is in accord with the great weight of authority in this country and the decisions of the Supreme Court of the United States. In Drew v. Thaw, 235 U.S. 432, 35 S. Ct. 137, 138, 59 L. Ed. 302, Mr. Justice Holmes, referring to extradition proceedings, said: ‘There is no discretion allowed, no inquiry into motives.’ ”

In Spiak v. Seay, supra, the Supreme Court of Appeals of Virginia stated:

“Here we have no question as to the identity of the person. The plaintiff in error, who is a fugitive from justice, so far as this record is concerned, admits that he obtained the. $9,000 from Blackwell in California, but claims it to have been a loan. The crime charged in the indictment and disclosed in the affidavit is that Spiak obtained from Blackwell, under false pretenses, the sum of $9,000. He may or may not be guilty of the offense charged by California. This is no concern of ours. No doubt that issue will be resolved in California. Our duty is ended when we ascertain, as we have, that the papers are in due form and properly authenticated, and that there has been full compliance with all of the constitutional and statutory requirements.
“The prosecution in California may or may not result in Blackwell’s collecting the $9,000. This, if he is successful, would be purely an incidental matter. The primary consideration is that the criminal offense charged is against the laws of California. The State, in the criminal prosecution, will not be interested in the collection of the debt by Blackwell, if it be purely a debt. When its criminal laws shall have been vindicated its interest will cease. The motive for the prosecution is not material. ******
“When a requisition is made it is the act of a sister State having equal sovereignty to our own, and not the act of some creditor or person holding, a selfish private motive who may have instigated the prosecution.
“The application for the requisition represents that it is made in good faith and not for the purpose of collecting a debt or for any other private purpose. This is in conformity with the Uniform Criminal Extradition Law which, as we have seen, has been adopted by Virginia. See Code, section 5070w(a), Michie, 1942.” [185 Va. 710, 40 S.E. 2d 253]

In the case of In re DeFoe, supra, the Supreme Court of Oregon stated:

“Both California and Oregon have enacted the Uniform Extradition Act, one section of which comprises Section 26-2620, Vol. 3, O.C.L.A., and section 1553.2, Penal Code of California 1937.
“While the California statute differs slightly from the Oregon statute, its meaning is the same.
“The Oregon statute is as follows: ‘The guilt or innocence of the accused as to the crime of which he is charged may not be inquired into by the governor or in any proceeding after the demand for extradition accompanied by a charge of crime in legal form as above provided shall have been presented to the governor, except as it may be involved in identifying the person held as the person charged with the crime.’
“Section 20 of the Uniform Criminal Extradition Act is identical with the above-quoted statute.
* * * *X* *
“Whether the prosecution of plaintiff is actuated by malice or in good faith, merely presents a question of credibility to be accorded to or withheld from the testimony of the prosecutrix; and in effect bears exclusively upon the guilt or innocence of plaintiff.” [179 Or. 334, 170 P. 2d 388]

It is our conclusion that the only possible effect of permitting one held to await extradition to the demanding state to show the motives of the private parties interested in the prosecution on habeas corpus would be to show tbe guilt or innoence of the accused, and under the provisions of the Uniform Criminal Extradition Act hereinabove quoted this court may not make such inquiry.

The writ of habeas corpus is denied.

BRETT and POWELL, JJ., concur.


source: Caselaw Access Project

author: BRETT, J.

license: Public Domain

text:
    O’DONLEY v. STATE.
    No. A-11138.
    May 24, 1950.
    (219 P. 2d 259.)

      W. H. Cooper, Anadarko, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and L. A. Wallace, Asst. Atty. Gen., for defendant in error.
   BRETT, J.

Plaintiff in error Wayne O’Donley, defendant below, was charged by information, tried by a jury on March 18, 1918, convicted of the crime of abandonment of his three children and failure to supply them with support and maintenance, said children being Patricia Ann, 7 years of age, Doris Marie, 5 years of age, and Diana Kay, 3 years of age. In said information he was charged with leaving said children in a necessitous and destitute condition in violation of the provisions of Title 21 O.S.A. 1941 § 853. The crime of abandonment is alleged to have been committed on the specific date of September 27, 1947. The jury found the defendant guilty and left his punishment to the .court, which fixed the penalty at 6 years in the penitentiary, and entered judgment and sentence accordingly. The information herein was filed on December 6, 1947, but the cause was not tried, appealed, briefed and submitted to this court until January 18, 1950.

The defendant’s first contention is based upon the proposition that evidence was admitted in the trial in relation to acts of abandonment and incidents occurring more than 3 years prior to the filing of the information, and the defendant says such evidence was inadmissible and incompetent as part of the crime charged in the information, and ás being barred by the statute of limitations. This contention was answered adversely in Goodart v. State, 65 Okla. Cr. 472, 88 P. 2d 911. Therein this court said, 65 Okla. Cr. 476, 88 P. 2d 913:

“Counsel in their brief say:
“ ‘This point was that Mr. Goodart committed a specific crime in a detailed manner upon a certain date and within a defined jurisdiction.
“ ‘Can it be said that the voluminous testimony concerning the actions of the defendant years previously was confined to a point in issue as of January 19, 1937, upon which date an alleged offense was charged to the defendant?’
“There is no merit in this contention. The statute defines but one offense, that may be committed in different ways; the husband and father may by the same act abandon his wife without just cause, and minor child or children under the age of 15 years in destitute and necessitous circumstances, and fail to provide for either or both. If he does either or both, he has committed but one offense, and that offense continues until proper provision, to the best of his ability, is made for their adequate support.”

In Goodart v. State, supra, this court cited Dean v. State, 55 Okla. Cr. 356, 30 P. 2d 195, wherein this court said:

“Considering the second assignment, if the original act of abandonment constituted the complete offense there might be some merit in the contention that the prosecution was barred; but it is not alone the act of abandoning the wife and children which constitutes the offense, but the neglect of the continuing obligation to support the wife and minor children, which, with the act of abandonment, constitutes the offense. We are aware that there is some division in the authorities; some holding that the offense becomes complete by the abandonment and refusal to support and that the statute of limitations begins to run at that time, but the more strongly sustained and the better reasoned rule is that the offense is composed of two essential elements — the abandonment and the refusal to maintain — and is a continuing offense. Under the latter rule the offense continues and is not barred so long as the abandonment and failure to support continues. 16 C.J. (Criminal Law) § 347; 30 C.J. (Husband and Wife) §§ 928, 929; Phelps v. State, 10 Ga. App. 41, 72 S.E. 524; State v. Stout, 139 Iowa 557, 117 N.W. 958; Burton v. Commonwealth, 109 Va. 800, 63 S.E. 464; State v. Beam, 181 N.C. 597, 107 S.E. 429; McRae v. State, 104 Miss. 861, 61 So. 977.”

Such being the law, and the abandonment and failure to support being continuous, the statute of limitations would not be applicable as a bar to the admissibility of the evidence in relation thereto, since the conviction is not predicated alone upon evidence of abandonment more than 3 years prior to the filing of the action. ' There is ample proof to support the charge, all of which falls within the statutory period of 3 years preceding the filing of the information. However, notwithstanding the continuing nature of the offense and the admissibility of the evidence prior to the statutory period of limitations throwing light upon the offense as charged in the information, the trial court limited the jury in its consideration of the evidence to evidence of desertion that occurred within the 3-year period next preceding the filing of the information. Therefore, this contention is without merit. The evidence herein of acts of abandonment before the filing of the information was sufficient to support the charge, as well as the evidence thereof subsequent to the filing of the charge, the latter being admissible as throwing light on the charge of abandonment,, and showing intent and motive. Jeffries v. State, 37 Okla. Cr. 110, 257 P. 333.

Briefly, the facts disclose that at the time the wife of the defendant was 6 months pregnant with their last child, the defendant, on August 7, 1943, abandoned the children, and from that time until January, 1944, he did not furnish them with any support whatsoever. (The record discloses his brother gave them $40 during said period of time.) The defendant returned in January, 1944, and got employment in March of 1944. Prom January, 1944, until March, 1944, he contributed nothing to the support of his children. Prom March, 1944, the date he went to work, until June, 1946, he gave his wife $25 to $30 every week for the benefit and support of the children. The record discloses that on two occasions he gave his wife $35 instead of $25. Prom June,. 1946, until March 18, 1948, the record discloses that he contributed to the support and maintenance of his children the total sum of $100. The defendant contended that the reason he did not do any better by his children was that during all of said time he was suffering from ulcers of the stomach. The record, however, shows that there were times when he was employed and making money, during which time he did not contribute anything, to his children, and from June, 1946, until the date of trial, during which time he was employed, that he contributed only the sum of $100,

In Dyer v. State, 58 Okla. Cr. 317, 52 P. 2d 1080, it has been held that the abandonment statute is violated not only by complete failure to support but where there is a partial failure so to do. In so holding the court, 58 Okla. Cr. 327, 52 P. 2d 1084, said:

“According to the great weight of authority and according to what we believe is the plain intent of our statutes, the fact that the mother alone or together with other persons furnished all the support needed for the child does not constitute good or sufficient cause for any failure or neglect by the father. Hunter v. State, 10 Okla. Cr. 119, 134 P. 1134, L.R.A. 1915A, 564, Ann. Cas. 1916A, 612, supra; State v. Waller, 90 Kan. 829, 136 P. 215, 49 L.R.A., N.S., 588; 20 R.C.L. 623.”

Here, it appears that during the time when the father was not supporting the children they were on public relief and on the charity of their friends, neighbors and members of the churches of their community. The fact that he contributed during the period of time from June, 1946, to March 18, 1947, the sum of only $100 presents a case of sheer neglect of his parental duty and forms sufficient basis of support for the verdict of guilty.

The defendant next contends that in a case of child abandonment that the wife was incompetent to testify against her husband, under the provisions of Title 22 O.S.A. 1941 § 702, reading as follows, to wit:

“Except as otherwise provided in this, and the following chapter, the rules of evidence in civil cases are applicable also in criminal cases: Provided, However, that neither husband nor wife shall in any case be a witness' against the other except in a criminal prosecution for a crime committed one against the other, but they may in all criminal cases be witnesses for each other, and shall be subject to cross-examination as other witnesses, and shall in no event on a criminal trial be permitted to disclose communications made by one to the other except on a trial of an offense committed by one against the other.” The foregoing section is not applicable however to a case of this character in view of the provisions of Title 21 O.S.A. 1941 § 854, expressly making the testimony of a wife competent in cases of this character and reading as follows, towit: “No other evidence shall be required to prove marriage of such husband and wife, or that such person is the lawful father or mother of such child or children than is or shall be required to prove such fact in a civil action, and such wife shall be a competent witness to testify in any case brought under this act, and to any and all matters relevant thereto, including the fact of such marriage and the parentage of such child or children.”

Next, the defendant contends that in view of the entire record and the partial support he did make available to his children at times during the period of abandonment that the punishment of 6 years, in the penitentiary is excessive. It is conceded by the Attorney General that in light of the record that this contention is not altogether without merit. With this contention we are inclined to agree. The record discloses that during the years from March, 1944, to June, 1946, he did provide for the maintenance and support of his children. While the condition of the defendant’s health was not by any means a controlling factor to his failure to support his children, the record discloses it may have been a contributing cause.' Under these conditions, and under the provisions of Title 22 O.S.A. 1941 § 1066, we feel constrained to modify the judgment and sentence appealed from to a term of 3 years in the penitentiary. It is therefore ordered that said judgment and sentence be modified from 6 years to 3 years in the penitentiary. For all of the above and foregoing reasons, the judgment and sentence herein as modified is affirmed.

JONES, P. J., and POWELL, J., concur.


author: POWELL, J.

text:
    TILGHMAN et al. v. BURNS, Sheriff, et al.
    No. A-11401.
    May 24, 1950.
    (219 P. 2d 263.)

      Sid White, Oklahoma City, for petitioners.
    G-ranville Scanland, Co. Atty., Oklahoma County, and James. R. Holbird, Asst. Co. Atty., Oklahoma City, and Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for respondents.
   POWELL, J.

This is an original proceeding in ha-beas corpus wherein the petitioners, Woodrow Wilson Tilghman, and Zoe A. Tilghman, his mother, seek the release of Woodrow Wilson Tilghman from the custody of the sheriff of Oklahoma county, where he was remanded to custody, in absence.of ability to make bond, after conviction in the district court of Oklahoma county, on a charge of robbery with firearms after former conviction of a felony. The warden of the State Penitentiary at McAlester, and the county attorney of Oklahoma county are also named in petition as respondents.

The verified petition filed herein alleges in substance that the verdict of the jury and the judgment of the court based thereon in case No. 19590, in the district court of Oklahoma county, is void, for the reason that the state was permitted to plead and prove former convictions of felonies suffered by the petitioner, but failed and refused to instruct and require the jury that it was their mandatory duty, in the event they found the defendant guilty, to assess Ms punishment, and that this was not a duty that could he delegated to the judge. It is complained that the jury did find the petitioner guilty as charged, but failed to perform their duty of fixing the punishment, but left the same to the trial court, hence the evidence of former crimes may have influenced and prejudiced the jury in arriving at their verdict of guilty, and was of no legitimate aid to the jury, and that the court had no authority, over the objections of petitioner, to fix the punishment where he was being tried under the habitual criminal statute, Tit. 21 O.S.A. § 51.

The following instructions set out as having been given to the jury are alleged to be erroneous:

“No. 7. Evidence has been introduced in this case bearing upon a former conviction or plea of guilty of the defendant to a felony or to felonies. This evidence was permitted to go to you for the purpose only of determining whether or not he had been formerly convicted or plead guilty to a felony or felonies, and it is no evidence of his guilt in the case on trial, and you will not consider it for the purpose of determining his guilt in this case, but consider it only for the purpose of determining the amount of punishment, if any.”
“No. 11. Should you find from the evidence, under the instructions, and beyond a reasonable doubt, that the defendant is guilty, it will then be your duty to assess the punishment therefor, in your verdict, within the provisions of law set out herein. However, should you be unable to agree on the punishment, so state in your verdict, and leave it to be assessed by the Court. Should you find the defendant not guilty, that is all you need say in your verdict.”

It is alleged that the verdict of the jury was void and that the court should have required the jury to return to the jury-room for further deliberations. The verdict reads:

. “We, the jury, empaneled and sworn in the above entitled cause, do upon our oaths, find the defendant Woodrow Wilson Tilghman guilty as charged in the Information, of the crime of Robbery With Firearms after Former Conviction of a Felony, and fix his punishment at imprisonment in the State Penitentiary for a period of - years. Unable to agree on punishment and leave it to be assessed by the Court. W. H. Bell, foreman.”

Petitioners’ prayer reads:

“Wherefore, premises considered, these petitioning plaintiffs pray: That in anticipation and in aid of its appellate jurisdiction and to avoid annoyance, vexation and labor to the judges and cruel and inhuman punishment to the said Woodrow Wilson Tilghman, this Honorable Court take jurisdiction and issue Habeas Corpus or other appropriate processes to prevent said sheriff and said warden from executing said void judgment and to prevent the law enforcement officers from again trying this subject until in its opinion, bottomed upon this pleading, the so called habitual criminal statute can be either declared un-' constitutional (as it should be) or construed to meet the ends of justice instead of promoting personal welfare at the expense of human misery.”

Counsel also argues:

“To deny relief renders the statute a bill of attainder contrary to the genius of our government. It creates a status subjecting a former offender to trial denied of the presumption of innocence and the protection of due process of law. It repudiates the philosophy of expiation, reform and forgiveness.”

The petition was filed herein on April 1, 1950, was set for hearing for April 11, 1950, to determine whether or not this court would take jurisdiction. At that time counsel for petitioners argued the case at length. Respondents were represented by the county attorney of Oklahoma county, and the Attorney General. This court issued an order directed to respondents to show cause, and a response has been filed, and the petitioners have filed a brief in line with argument made.

Counsel for petitioners correctly stated the issue, when he said:

“This leaves for determination but a single question— is this judgment valid, or is it void?”

This court has uniformly held that the writ of ha-beas corpus may not be used as a substitute for an appeal, so the various matters will be gone into only so far as the same may be an aid in determining the jurisdiction of the trial court and whether or not the judgment complained of was void. Ex parte Vanderburg, 73 Okla. Cr. 21, 117 P. 2d 550; Ex parte Stevens, 82 Okla. Cr. 232, 168 P. 2d 136.

The constitutionality of a statute may in a proper case be tested in habeas corpus proceedings. Ex parte Fowler, 85 Okla. Cr. 64, 184 P. 2d 814; Ex parte Lee et al., 88 Okla. Cr. 386, 203 P. 2d 720; Ex parte Burns, 88 Okla. Cr. 270, 202 P. 2d 433; Ex parte Olden, 88 Okla. Cr. 56, 199 P. 2d 228; Ex parte Strauch, 80 Okla. Cr. 89, 157 P. 2d 201.

The statute under which petitioner Woodrow Wilson Tilghman was prosecuted, being Tit. 21 Okla. Stat. Ann. §§ 51 and 52, and commonly known as the habitual criminal statute, has in many cases been by this court construed and determined to be constitutional. In the case of Spann v. State, 69 Okla. Cr. 369, 103 P. 2d 389, 390, this court said:

“Habitual criminal statute, Penal Code, Art. 6, Sections 1817 and 1818, O.S. 1931, 21- Okla. St. Ann. §§ 51 and 52, does not create or define a new or independent crime, bnt described circumstances wherein one found guilty of a specific crime may be more severely penalized because of his previous conviction, as alleged and found. ‘Habitual criminality’ is a state and not a crime.”

The court in the body of the opinion further said:

“The law complained of is a valid, existing penal provision and does not conflict in any way with any of the constitutional guaranties possessed by the accused.”

The above case may be referred to for a full discussion and for citation of many other cases on the subject by this and other courts.

The instruments at hand in this case indicate that over a period of 20 years the defendant has had continuous conflict with society and has been convicted of a variety of heinous crimes. And while counsel recognizes that this court has held in the recent case of Carr et al. v. State, 90 Okla. Cr. 194, 216 P. 2d 333, and cases therein mentioned, that evidence of more than one prior conviction may be submitted to the jury where one is prosecuted under 21 O.S.A. §§ 51, 52, yet, it is contended, as heretofore mentioned, that the verdict of the jury and the judgment of the court rendered thereon were each void because the court did not make it mandatory on the jury to assess the punishment. The argument advanced is that the only reason the evidence of prior criminal convictions was admitted was solely to aid the jury in assessing the punishment, and that such evidence could not have been of aid if the jury failed to assess the punishment, but on the contrary could have prejudiced the jurors and influenced them in finding the defendant guilty. Counsel apparently overlooks the fact that the instructions of the court are to advise the jury of the purpose of evidence, and that where the court fixes the punishment, the evidence in a case like this would aid the court in like manner as the jury, in assessing the punishment. This would be true in a case where an accused might waive a jury.

It may be that where evidence is admitted and limited for consideration to one particular purpose when it might be considered for another purpose, in truth and in fact, consciously or subconsciously, often is considered contrary to the direction. This is probably too true, and perhaps such situations should not be looked on with favor. Nevertheless, such practice is the settled law, and to repudiate it would break down the jury system, as jurors have nothing but their conscience and religious beliefs or ethical convictions to prevent them from disregarding all instructions by the court given.

The fact that the evidence of other crimes would tend to destroy the character of an accused in a case was no doubt given careful consideration by the Legislature, and in its wisdom the statute complained of was enacted. And, after all, each person sets the sail that guides him over the seas of life. Only where there is a will and desire and effort to observe the storm signals and shoal warnings may one be aided along the way. There may be smooth sailing for a time in spite of disregard of convention, and the more times indulgent nature permits successful evasion the less warning signs act as deterrents, and finally disaster beyond redemption is the natural consequence. The state did not destroy petitioner’s character in this case. If it was destroyed, the attempt to blame the state is not impressive.

The well-considered case of Ladd v. State, 89 Okla. Cr. 294, 207 P. 2d 350, disposes of the further element of the issue raised. Therein this court held:

“Tit. 22 O.S. 1941 §§ 926 and 927 provide:
“926 In all cases of a verdict of conviction for any offense against any of the laws of the State of Oklahoma, the jnry may, and shall upon the request of the defendant assess, and declare the punishment in their verdict within the limitations fixed by law, and the court shall render a judgment according to such verdict, except as hereinafter provided.
“927 Where the jury find a verdict of guilty, and fail to agree on the punishment to be inflicted, or do not declare such punishment by their verdict, the court shall assess and declare the punishment and render the judgment accordingly.
“Under Tit. 22 O.S. 1941 §§ 926 and 927, it is the duty of the court upon request of defendant to instruct the jury to fix the punishment to be assessed the defendant upon a verdict of guilty, giving them an opportunity to pass upon the question as to the punishment to be inflicted.
“The court should instruct the jury that if they find the defendant guilty of the crime charged beyond a reasonable doubt, and after due deliberation are unable to agree on the punishment, they should so state in their verdict and leave the punishment to the court.
“When a verdict is returned into court, stating, that the jury finds the defendant guilty and is unable to agree upon the punishment, the court has the right to fix the punishment within the limitations provided by law, even though defendant had requested the court to instruct the jury to fix the punishment.”

For the reasons above stated, the petition for writ' of habeas corpus is hereby denied.

JONES, P. J., and BRETT, J., concur.


text:
    BRADY v. STATE.
    No. A-11163.
    May 24, 1950.
    (219 P. 2d 267.)

      White & Parris, Eufaula, and George L. Hill, Mc-Alester, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., Hazen Green, Co. Atty., McIntosh County, Eufaula, Kirksey M. Nix, and Tom G. Haile, McAlester, and Milam M: King, Checotah, for defendant in error.
   POWELL, J.

Carl Brady, plaintiff in error, defendant below, was charged by information filed in the district court of McIntosh county with the crime of manslaughter, first degree, was tried before a jury on April 26, 1948, found guilty and assessed punishment of four years in the penitentiary. Appeal has been perfected to this court.

For reversal, some seventeen specifications of error are set out in the petition in error, but are argued in brief under seven propositions, as follows:

“1. Refusal of the court of the request of the defendant below to limit the argument of the attorneys for the State to the same number as the attorneys for the defendant below to two and that the court committed error in permitting three arguments of the State over the objections of the defendant.
“2. Misconduct of the special prosecutors.
“3. Refusal of the court to give defendant’s requested instructions numbered 1 and 2.
“4. Error of the court in giving instructions numbered 6, 7, 8, 11 and 12.
“5. Error of the court in admitting incompetent, irrelevant, immaterial and prejudicial evidence over the objections of the plaintiff in error.
“6. Error of the court in refusing to admit evidence offered by the defendant below to which refusal of the court the defendant below duly excepted.
“7. That the evidence for the State was so glaringly conflicting that same was not sufficient to sustain a conviction herein.”

The appellant was the night city policeman of Eu-faula. The tragedy herein involved was the outgrowth of his arrest, or attempted arrest, of Joe Boy Williams, now deceased, and witness for the state, Bob Burton. The record discloses that appellant, who will hereinafter be referred to as defendant, was first informed against in justice court in-the city of Eufaula, and upon preliminary hearing Avas discharged by reason of insufficiency of the evidence; that thereafter complaint was filed before a justice of the peace in the neighboring city of Checotah, preliminary hearing was waived, and the defendant was thereafter, and on July 21, 1947, tried in the district court of McIntosh county, but the jury failed to agree, and the court declared a mistrial, and on second trial defendant was convicted as first herein recited.

The county attorney of McIntosh county was assisted in the prosecution by three able special prosecutors, and the defendant was represented by able counsel. We have had the benefit of oral argument of several of the trial attorneys, and the Attorney General.

The pertinent portion of the information reads:

“* * * That Carl Brady on the day and year aforesaid, in the county and state aforesaid, did then and there knowingly, Avilfully, unlawfully, wrongfully and feloni-ously, make an assault in and upon one Joe Boy Williams by means of a certain weapon, to-wit: a 45 automatic pistol which he, the said Carl Brady, without a design on the part of him, the said Carl Brady, to ef-feet death, but in a heat of passion and in a cruel and unusual manner then and there and thereby inflicting upon the said Joe Roy Williams, certain mortal wounds, of which said mortal wounds the said Joe Roy Williams did, on the 17th day of November, 1946, die, in the Oklahoma Baptist Hospital at Muskogee, Oklahoma. * * *”

The theory of the state, from the evidence introduced by the state, seems to have been that the deceased did not commit a misdemeanor in the presence of the officer-defendant, that the deceased was not intoxicated, and therefore the defendant had no right without a warrant to attempt the arrest of Joe Roy Williams, and that deceased had a right, under such circumstances, to protest and resist being arrested, and at all events, even if legally arrested, that the defendant had no just grounds to fire on the deceased.

The theory of the defendant was that there was a lawful arrest and that the deceased resisted arrest, obtained possession of the defendant’s pistol, refused to give it up, and that defendant shot only as a last resort to protect his own life.

We shall treat defendant’s seven propositions in order as seems logical. Counsel contends, and they set out evidence of various of the state’s witnesses to demonstrate and support their proposition, “that the evidence for the state was so glaringly conflicting that the same was not sufficient to sustain a conviction herein.” We have examined this evidence most carefully. This case is close and presents difficulties, because we are confronted with the proposition that the record does as a fact disclose a sharp conflict in the evidence of the state’s own witnesses involving the very material questions, (1) As to whether or not a misdemeanor has been committed by Joe Roy Williams, the deceased, in the presence of the defendant-officer at the time of the arrest or attempted arrest; and (2) whether or not in the resistance that followed the arrest or attempted arrest, the deceased was attempting to nse or cause the defendant to believe that he was attempting to use, and thereby endangering defendant’s life, the pistol deceased had gained possession of after he knocked or threw defendant to the pavement.

The evidence, on the other hand, of the defendant’s witnesses concerning these material factual issues was consistent and was corroborated by a number of the state’s witnesses.

We shall consider the state’s evidence.

The state used 14 witnesses on direct examination, and two on rebuttal, and the defense used 14 witnesses. Concerning the material and important question as to whether or not the deceased committed a misdemeanor (that is, in this case, was he creating a disturbance or was he intoxicated in the presence of the defendant-officer, so as to make the arrest without warrant a valid arrest), Bob Burton, who was the companion of the deceased at the time of the tragedy, and who was arrested along with the deceased and who subsequently paid a fine for being drunk, testified:

“I was in the 69 Tavern with Joe Boy Williams and we went over there, and there is a cafe there — -we just went in there and I was up in front talking to some guy. Joe Boy was kinda in the back end there, and he ordered some coffee, and he and the girl had a little argument, I don’t know what it was about, what the argument was about, I didn’t go back there, and she began to raise the devil with us, with him, and so we started out the door and got just outside the door and met Carl Brady — * * * So we were just outside the door and met him, and he said ‘What are you guys doing?’ We told him nothing, and he said well he was going to take us to jail, said we had raised enough hell around there, and we started on out with him and got not quite half way out in the street and began to talk to him to get him not to throw us in.”

On cross-examination, witness Burton testified in part:

“Q. Had you been drinking that day, Bob? A. Yes, sir. Q. Both of you? A. Yes, sir.” [Witness later testified that they drank only a half pint of whisky over a period of hours that evening.] “Q. The first you heard was the girl talking? A. That’s right. Q. How long after that commotion was it until you left the cafe? A. Well — you mean from the time the commotion started until we left? Q. Yes. A. Well, they just had a few words and it didn’t last but three or four minutes, the argument didn’t. I told Joe, I said, ‘let’s go.’ He come right on out and we started out the door. How far did you say you had gotten out before you met Mr. Brady? A. Just outside the door. I would say three or four steps out. Q. When you met Mr. Brady? A. That’s right.”

Witness Burton further testified that he was placed in jail by Mr. Brady, which followed the cafe and street incident, and concerning this he was asked and answered as follows: “Bob, you did pay a fine for being drunk on that occasion, didn’t you? A- Yes, sir.”

Pauline Henson, another state’s witness, testified that she was working as a waitress at the 69 Cafe on the night of November 16, 1946; that Joe Roy Williams came in between 11:30 and 12:00 p. m., and he and Jewell, the girl who ran the place, got in an argument. She handed him a cup of coffee and asked him to sit down, and he would not and she knocked the coffee out of his hand and he picked up the cream and started to drink it, and she knocked it out of his hand and pick up a ball bat and hit him across the back with it three times, and that he took the bat away from her, but in doing so it slipped and hit her and she was awfully mad.. Witness further testified:

“She [Jewell] tried to get somebody to call the law and I think finally the dishwasher did call the law. I know he didn’t have time to get the call until Carl Brady walked in and Joe Roy said ‘Carl, I’ll do anything you want me to do, just anything’, and Carl took him by the arm and started walking out, and he walked by me and stopped and asked me if he had started anything either way, and I told him I couldn’t say anything either way— I was just working, there.”

She further testified: “He wasn’t drunk. I wouldn’t say he was drinking or not, but I know he wasn’t drunk.”

On cross-examination, she testified in part:

“Q. There was a commotion going on in that place, wasn’t there? A. Yes, I guess so. Q. You know there was, don’t you? A. Yes, sir. Q. Who was that commotion between? A. Between Jewell and Joe Roy.”

The evidence of Carrie Carr Hill given at the former trial was read. She testified substantially as Pauline Henson, and that she too was a waitress at the 69 Cafe at the time of the difficulty in question. She testified further:

“* * And then he [Joe Roy] jerked this ball-bat out of her hand — he twisted it out of her hand and it kinda hit her on the back of the neck, and he taken that and leaned back up against a chair, and she asked for Mr. Brady to be called, and someone, the dishwasher, I believe, called Mr. Brady, and he was still standing there with the ball-bat in his hand when Mr. Brady went in — he was standing there laughing and talking. I wouldn’t say the boy was drunk, he didn’t act to me like he was — when Mr. Brady came in he said ‘come go with me’ and he said ‘of course, Mr. Brady, I will go with you anywhere.’ Q. And they left the cafe? A. Yes, sir.”

Andrew Fenton testified for the state, that he came in the 69 Cafe aftér Joe Roy Williams was already there. He stated in part:

“Q. Did you see what, if anything, took place between Mr. Williams and the girl, Jackie, who was operating, or supposed to be running the place? A. When I went in they was arguing over a cup of coffee, I believe, or something, I don’t know just what it was about — when I went in they was arguing. Q. What, if anything, did you see Mr. Williams do? A. She was trying to get him to go out and he said he hadn’t done anything out of the way to go out for. * * * Q. She got a baseball bat, what did she do? A. She told him to go outside, and he said he hadn’t done anything out of the way, and she started to hit him and, of course, he just caught the bat. Q. All right? A. Well, she told him to go on ont and he said he hadn’t done anything out of the way, he would go out when he got ready, she said 'I’ll bet you go out’ and she went back in the kitchen where they do all the cooking and got a little old pistol, I didn’t pay much attention to it. She told him to go on outside. He just sat there. And about that time Mr. Brady come in. She told Mr. Brady to take him outside. Mr. Brady told him, 'Come on, let’s go.’ And they just walked on the outside.”

This completed all of the state’s evidence directly concerning the validity of the arrest. And based solely on the weak and unsatisfactory evidence of the involved witness Burton, which evidence, as above demonstrated, was contrary to that of the other three of the state’s witnesses, the court considered the question as to whether or not a misdemeanor was in fact committed by Joe Roy Williams in the presence of the arresting officer at the time.of the arrest or attempted arrest, as sufficiently questionable as to require such issue to be submitted to the jury, and over the objection and exception of the defendant instructed the jury as follows:

“No. 6. You are instructed that under the constitution, statutes and the laws of the State of Oklahoma, a city policeman is a conservator of the peace, and it is his duty as said officer to take cognizance of all infractions of the city ordinances, and state laws, and, if an offense has been committed in his presence, then it is his duty to make an arrest.
“Therefore, you are further instructed that under the laws of this state no officer may arrest a person for a misdemeanor without a warrant of arrest for such person unless the misdemeanor is committed in the presence of the officer and at the time of such arrest, and any officer making an arrest for a misdemeanor, not committed in his presence and without a warrant, is a trespasser and the person sought to be arrested is not obliged to submit to the arrest, and such an arrest is an illegal one. Furthermore, under such conditions, the officer has no right to prevent an escape and, in preventing such escape or attempted escape;, the officer would still be a trespasser.
“And, in this connection, if you should find and believe from the evidence beyond a reasonable doubt that the arrest or attempted arrest of the deceased by the defendant was made or attempted to be made without a warrant and without the deceased having committed a misdemeanor in the' presence of said defendant, and at the time of the arrest or attempted arrest, then you are instructed that the deceased has a right to resist such arrest or attempted arrest by the defendant.”

Defendant contends that there was no evidence to justify the above instruction, and that said instruction tended to place the burden of proof on him to establish that he made a legal arrest.

Considering the evidence recited, it is apparent that in giving the instruction complained of, the court disregarded the question of the intoxication or nonintoxication of witness Bob Burton, who admitted that he and the deceased had drunk a half pint of whisky between them, and disregarded his testimony that he had pleaded guilty to being drunk on this occasion and had paid a fine, and disregarded the evidence of the other three disinterested state’s witnesses who testified that the arrest of the deceased and of the witness Burton was made inside the 69 Cafe during the disturbance, rather than outside after the disturbance was over, as testified to by Burton.

It is, of course, fundamental that it is incumbent upon the prosecution to establish each and every material element of the crime charged and every fact and circumstance essential to the guilt of the accused by the evidence beyond a reasonable doubt. Crouse v. State, 39 Okla. Cr. 127, 263 P. 681; Voegeli v. State, 75 Okla. Cr. 420, 133 P. 2d 219; 22 C.J.S., Criminal Law, § 566; 20 Am. Jur. § 149. But this court cannot overlook the well established rule that it will not substitute its judgment as to the weight of conflicting evidence and credibility of witnesses where there is evidence' reasonably tending to support the verdict. Edwards v. State, 87 Okla. Cr. 399, 198 P. 2d 656. However, as contended by the defendant, we have found in the cases examined and where this basic rule has been adhered to, that the conflict in the evidence seems to have been between the evidence of witnesses for the state and witnesses for the accused, rather than involving a conflict in the evidence of the state’s witnesses. The question raised as to whether or not the above rule would apply in the situation here presented is not without merit, for we find that this court in a number of cases has reversed convictions where on the part of the state the evidence for conviction came wholly from the testimony of two witnesses of equal credibility, one testifying to the guilt and the other to defendant’s innocence. Clark v. State, 65 Okla. Cr. 56, 82 P. 2d 844; Jackson v. State, 12 Okla. Cr. 446, 158 P. 2d 292. See, also, involving the principle: Morris v. State, 30 Okla. Cr. 382, 236 P. 443.

Considering the evidence of Burton alone, we do not find it of that quality that would justify instruction No. 6, and at all events the burden of proof resting on the state, the evidence of one interested state’s witness was certainly overcome by the evidence of three disinterested state’s witnesses, and did not make tenable the state’s theory concerning the arrest, and in view of the Clark and Jackson cases, supra, we hold that it was error on the part of the court to submit to the jury the issue involved in instruction No. 6.

From what has been said, it follows, therefore, that the state having established by its witnesses that the defendant was justified in arresting the deceased, it was also error for the court to submit the issue by giving that part of instruction No. 7, which was objected and excepted to by defendant, and reading:

“* * * And, in this connection, you are instructed that if you find and believe from the evidence that the deceased, Joe Boy Williams, was in an intoxicated condition on the day and date and time and place alleged in the information, or that he committed the act of disturbing the peace, in the presence of said officer, as defined herein, or entertain a reasonable doubt thereof, then you are instructed that it was the duty of the defendant, Carl Brady, to arrest him and incarcerate him in order that he might be tried under the laws of the State of Oklahoma, and if the deceased resisted arrest, then it was the duty of such officer to use such force as was reasonably necessary to make said incarceration.”

We shall now consider the state’s evidence concerning the second inquiry. Concerning the second issue as to whether or not in the resistance that followed the arrest or attempted arrest, the deceased was attempting to use or caused the defendant to believe that he was attempting to use (and thereby endanger his life), the pistol deceased had gained possession of after he knocked or threw defendant to the pavement, Bob Burton testified on direct examination:

“A. We got a little over half way across, the street, we all three of us stopped there talking and Joe Boy said ‘I would like to pay a fine if that’s what you want’ and he said he wouldn’t accept it, and he jerked us— Q. Who did he jerk? A. He jerked both of us, had one in each hand, and I kinda stepped back and kinda pulled away and him and Joe Boy went into a kind of a little tussle. Q. Now, Bob, while you were scuffling there, did you at any time see any weapon or firearms or gun of any kind? A. Not right at the time. Q. What happened after they went into the scuffle? A. It only lasted about a second and he raised up and a gun fell out in the street. Q. Gun? What kind of a gun was it? A. Bevolver. Q. What happened to the gun? A. Joe Boy picked it up.”

Witness further testified that he thought Joe Boy was going to hand the revolver back to Brady, that he “had it about the middle of the gun”, about the cylinder, and that about that time Boss Wortham, manager of the 73 Tavern (which was right across the street east of the 69 Cafe), came out, went back in the cafe and came out the second time with a towel in his hand and walked directly up to Brady and kind of ran into him and then went back into the tavern. Witness further testified:

“Q. What happened then? A. Brady turned around, said ‘Come on’ and about that time they were standing there talking, Joe Boy and Brady, and he come out with a gun— Q. Who did? A. Brady — had a .45 — he had it kinda in his belt. Q. Was that after Wortham came out or before? A. After.”

Witness stated that Brady then commenced shooting at Joe Boy, and that after the first shot Joe Boy started going down like lie had been hit in the right leg; that Brady fired about five shots, and then came over and snapped his gun at witness and said: “Let’s get going,” and took witness to the city jail. This witness testified on cross-examination:

“Q. Now, the first little difficulty you had with Mr. Brady occurred about the middle of the street, is that right? A. No, it wasn’t quite in the middle. We was just outside the door, I don’t think it was half way to the street. Q. What brought that about? A. Because we didn’t want to go to jail. Q. I see. And did you jerk loose from him, or anything there? A. I pulled loose after he jerked me. Q. By the way, how much do you weigh, Bob? A. Approximately 200. Q. How tall are you? A. Six feet. Q. Do you recall whether you were as large as Joe Boy or not? A. He was about the same size. Q. You were both about the same size? A. Yes, sir. Q. After you pulled away from him, what happened? A. We wanted to buy off from going to jail, pay him a fine, but he wouldn’t accept it. Q. He told you he would have to take you on to jail, is that right? A. That’s right. Q. Then how far did. you go until something else happened? A. A little over half way across the street on the east side of the highway. Q. What happened then? A. They had a little scuffle there, Brady and Joe Boy. Q. Did Mr. Brady go to the ground? A. No, sir. Q. He never did fall down? A. No, sir; he was in about a half way stooped position. Q. Did you see any blood or anything on Mr. Brady that night? A. No, sir, if he had any on him I didn’t see it.”

Virgil Fairchild, a witness for the state, testified concerning the difficulty in the street involving the deceased, Bob Burton and the defendant, that he, with Virgil Nichols, Herman Fairchild and Balph Ott, shown lo be young men, were riding around the night of November 16, 1946; that they were in the 73 Tavern and witness saw Joe Boy Williams and Bob Burton there; that Joe Boy got a cup of coffee and witness and his companions got in Ms brother Herman’s car, drove around a while and came back and parked in front of the 73 Tavern; that Joe Roy’s truck was parked the other side of their car; that he saw Joe Roy and Mr. Brady, the defendant, coming from the 69 Cafe, and that: “Joe Roy told him if he done anything he would pay his fine”; that Mr. Brady told him he was going to jail; that “Joe Roy pulled loose from him and Mr. Brady came back and caught hold of his arm and Joe Roy threw him down then.” Witness was asked:

■ “Q. Right at that point, up until that time, had you seen anybody with a gun in their hands? A. No, sir. Q. Joe Roy pulled loose from him, you say, and Mr. Brady came back and took hold of him again? A. Mr. Brady had a gun when he come back after him a second time.”

Witness was asked what happened then, and answered that Joe Roy threw him down. He was asked:

“And what then is the next thing you saw after you say Mr. Brady was down? A. Joe Roy walked over by him and picked up his gun and came back and helped him up. ... Q. Did he do anything else? A. Pulled a handkerchief out of his pocket and wiped blood off his nose. Q. What was the next thing you saw? A. Joe Roy gave him his gun back and started to walk off.”

He stated that at this point Mr. Brady shot Joe Roy, shot at him five or six times; that he heard no other firing. He stated that Mr. Wortham, the cafe man, came out before the shooting started but that he did not go up to either of the parties, and was in the tavern calling the officers when the shooting was going on.

On cross-examination witness testified that Joe Roy threw the defendant down and defendant kind of fell on his face; that defendant was flat on the ground and had blood on his nose when he got up; that Ross Wortham did not talk to either of the parties or go near them; that he was positive that Joe Boy never fired a single shot.

Herman Fairchild testified substantially as his brother, except he stated that after Joe Roy slung the defendant down that he headed for his truck and then came back and helped the defendant and wiped blood off defendant’s face; that he saw a gun in Joe Roy’s hand and that witness hurried in the tavern and got behind the icebox as the shooting started. He did not see the shooting.

Ralph Ott testified that Joe Roy either knocked or threw the defendant flat on the pavement, he could not tell; that he noticed Joe Roy with a gun in his hand; that defendant had blood on his face; that Joe Roy gave the gun back to the defendant and that the defendant had two guns when the shooting commenced; that witness and his companions went into the Tavern, that he got out of the car after the first shot was fired. The record indicated that on preliminary hearing this witness testified that he and his companions stayed in the car until the shooting was over.

Virgil Nichols testified that he saw Mr. Brady bringing Joe Roy across the street with Bob Burton following; that Joe Roy jerked loose twice and the second time Brady got out his gun and Joe Roy took hold of his wrists and threw him to the ground; that Joe Roy got Brady’s gun and had it kind of behind him, wiping the blood out of Brady’s eyes with his other hand, and he thought Joe Roy handed Brady his gun and started walking sideways to his car, and that Brady opened fire and he did not know whether Joe Roy fired or not. He further testified :

“A. Let me tell you, we got out of the car and went into the 73 and were looking out the door there, before the shooting started. We were in the 73 and standing in the door looking out when the shooting started. Q. You were out in the street? A. No, standing in the door. Q. Where was Ross Wortham? A. Trying to call the law; he was trying to call the law when they were wrestling and then right at the time the shooting was going on.”

Billy Gene Grider testified that he was in the Tavern with a friend who got up and looked out of the window and said, “Looks like they are having trouble;” that he looked out and saw the defendant fire on Joe Roy and saw Joe Roy fall and witness then ducked behind the window.

Charles Bussey testified that he was in the 69 Cafe when the shooting commenced and that one shot came right over his head and that he then knelt on the floor, and that he did not see the shooting but heard it; that from his experience with firearms he would say only a .45 calibre gun was fired; that five or six shots were fired. He further testified that he was in the 69 Cafe for 15 or 20 minutes before the shooting, and said: “I didn’t see any disturbance — didn’t pay any attention to it.”

Although there was conflict between the state’s witnesses and even conflict in the testimony of individual witnesses given either at preliminary or on former trial, in certain particulars, we conclude that the state’s evidence justified the inquiry as to whether or not the defendant used more force than was necessary in his attempt to disarm and subdue the deceased, and whether or not defendant shot deceased in his own necessary defense.

On behalf of the defendant, Doug White testified that he and O’Dell Jones were in the 69 Cafe when Bob Burton and Joe Roy Williams came in. He stated: “I just noticed them drinking, and a little loud.” Witness and Jones soon went across the street to the 73 Tavern. He testified that later on, coming out of the 73 Tavern, he noticed trouble.

“Q. Tell the jury what you saw there. A. Well, as we started out the door, I saw Boy had his back to the 73 Tavern with a gun in his hand, with both hands behind him. Carl was kinda wobbling around, blood running down his face. We walked on across the street and turned around and stood there and watched. I heard Boy first say £I haven’t done anything.’ I heard Carl say, ‘Get on down there’, and they kinda- circled off from one another and started firing. Q. Do you know whether both men were firing? A. Both were firing. Q. Do you know how many shots were fired? A. I would say 10. * * * Q. Do you know whether Carl was shot on that occasion? A. Well, Carl flinched. So far as being shot, I wouldn’t know — he kinda staggered back one time.”

Witness further testified that he and his companion were also drinking when in the 69 Cafe; that the state subpoenaed him for the preliminary hearing and for the other trial, but did not use him.

O’Dell Jones testified substantially as Doug White. He was asked:

“Q. Anything attract your attention when they [Joe Boy and Bob] came in? A. Well, they just come in, seemed in a right mood, maybe, to have a little trouble, a little loud and making their way.”

Witness further stated with respect to the later difficulty in the street that 10 or 12 shots were fired. On cross-examination the state tried to show that witness had seen a .45 automatic in Boss Wortham’s cash register some time before, but witness denied this.

George Scott testified that Joe Deere and Bob Burton picked defendant up after Joe Boy slung him to the pavement and that they wiped the blood from defendant’s face.

John H. Dalgarn and Fuller Gray testified to defendant being thrown down by the deceased, and that deceased got one of defendant’s guns and that both fired about the same time.

Virgil Blair, constable, testified that about 10 to 15 minutes after the trouble they were fixing to take defendant to the hospital and that he took a .45 Colt Automatic and a .32.20 revolver from defendant and gave them to Chief of Police Casey. And Deputy Sheriff Tom Barton testified that each firearm was full of empty shells.

The defendant Carl Brady testified that some one ’phoned him to hurry to the 69 Cafe where they were having trouble. That he arrived there about three minutes later, and found Bob Burton sitting on the end of a stool at the west end of the counter. He further testified :

“A. Joe Roy Williams was sitting right opposite him on a booth table with a ball-bat in his hand, waving the ball-bat around, and the lady running the place was standing behind the counter crying, and told me to take them out, that they had caused enough trouble in there. I promptly placed the boys under arrest and started out with them. Q. What was their condition with reference to whether or not they were drinking? A. They were both drinking pretty heavy.. Q. Go ahead and tell what happened then. A. We started across the street and got somewhere near the middle of the street; they both wanted to know where we were going. So I told the boys I would have to take them over to the city jail, that I got a call from them, and they said: ‘Hell no, we are not going, we will pay a . fine, but we are not going to jail.’ So I told the boys I couldn’t fine them, they would have to go to jail and the police judge would have to assess the fine, but if they would go and stay a while then I could let them put up bond and let them go on home, but Joe Boy jerked loose and said he wasn’t going. So I got hold of them a second time. The second time he grabbed me, threw me around directly to where Bob Burton was behind me. That’s the last thing I remember until I was coming to on the pavement. I had been hit in the back of the head — a ridge up and down this way— * * * I had been hit in the back of the head. When I came to, just as I was coming to, I heard a thud — sounded like a shot to me — that led me to believe that’s when he hit me across the nose with my revolver. * * * Q. Go ahead. A. When I got up — as I became settled, trying to get up, some of the boys, Bob Burton was standing on my left, so one of the boys helped me up — I reached to get my handkerchief to wipe the blood out of my nose and face, and Bob Burton pulled his handkerchief out and assisted me in wiping the blood out of my face and eyes. I pulled my glasses off to get the blood off of them, but left them off, the left lense was broken and gone and I just stuck them in my pocket. So after I stood around there a little bit, kinda regained consciousness, I asked Burton if he had my gun. He said, ‘No, I haven’t got it, but I know who has.’ I turned to Joe Boy and asked him. He said, ‘No, I haven’t got it.’ I said ‘Who has?’ He said, ‘I seen a boy pick it up and run across the street with it.’ All of that time he was standing with the gun in his hand behind him. Just as I was coming to I heard Bob tell Joe Boy, ‘Don’t do that, give me that gun.’ That’s why I knew he had it. So, I just stepped around Boss Wort-ham — he had came out there trying to get me to go in the 73. I told him I would be all right — I stepped around him and pulled this automatic and told Joe Boy I had another gun, that he was going to jail. And by that time he came out with this gun and stuck it towards my midsection, and I jumped back and he jumped to his left, and we both fired about the same time, and from that time on the shooting started. Q. Were you shot on that occasion? A. His second shot hit me in the shoulder, right in here (indicating left shoulder). Q. Now, Carl, did you know whether or not Joe Boy was hit until it was all over? A. I didn’t know hie was hit until he fell out there in the middle of the pavement. Q. What did you do after the shooting was over. A. As soon as he settled down kinda on his right side, I ran over and kicked the gun out of his hand. Q. What position did he have it in? A. He was still trying to raise the gun up like he was trying to shoot. I didn’t know whether it was loaded or not. I kicked it out of his hand and picked it up, put it in my holster, and put my gun under my belt, walked around the pick-up setting there and told Bob Burton I was going to take him to jail and he went with me. And, on the way over he said: ‘I was trying to help you’ and I said, ‘Damned if you wasn’t.’ That’s all of the words that were said. I locked him up for being drunk and disturbing the peace. Q. Where did you go then? A. Directly back ot the 73 Tavern. A truck driver drove up during the time the shooting was going on. He got out and came on over — he saw me take this boy over to the jail. He came over and told me he had been in the medical corps in the army and if he could assist me in any way he would be glad to. I told him I was hit in the shoulder but didn’t know whether he could help me or not. Q. Did you receive medical treatment that night? A. Yes, they taken me on in the 73 Tavern, spread a coat or blanket down, laid me down, taken my coat and short and everything off. Doctor Dickey got there about that time, put a little bandage over that and give me a hypo and sent me to the hospital. Q. How long were you there? A. Eleven days. It was five days before they taken the bullet out. Q. Did they operate and take the bullet out? A. Yes, the fifth day. I had a temperature — they couldn’t operate on me there for five days.”

The difficulty in the street was corroborated in many important particulars by Ross Wortham, the 73 Tavern owner, as well as other witnesses. The state offered two former waitresses at the 73 Tavern in an attempt to show that Wortham was ’phoning all the time the difficulty was going on and did not have opportunity to see the difficulty, but Wortham’s evidence was corroborated by witness, Fuller Gray, and other witnesses in important particulars. The greatest discrepancy in the testimony of the defendant’s witnesses was as to who wiped the blood off defendant’s face, prior to the gun play. Some did not know, some thought Bob Burton did, one was positive it was John Deere and Bob Burton, while one thought the deceased helped in this.

Counsel for defendant contend that the court failed to properly instruct the jury on their theory of the defense, and that the court erred in failing to give their requested instructions Nos. 1 and 2. We have examined the requested instructions and find that requested instruction No. 2, if the court had given it, would have been a proper instruction covering the charge in the information, but that the instructions as a whole fairly cover the subject of that requested instruction. But it is set out under defendant’s assignments of error III and IV that: “* * * the court did not in his instructions to the jury properly define the duties and rights of peace officers,” citing Tit. 22 O.S. 1941 § 193, and “that the instructions in this case taken as a whole * * * rather tended to instruct solely upon the theory of self-defense between two combatants, neither of whom is an officer.”

An examination of the instructions given discloses that Nos. 8, 9, 10 and 11 do involve self-defense between two combatants, neither of whom is an officer. Instruction No. 7 in part mentioned arrest by a peace officer, but we have herein held that instruction erroneous by reason of that portion of the same we have previously quoted herein.

Instruction No. 12 so far as it went did cover defendant’s theory, except in the first portion it, too, predicated it on the jury first determining whether the defendant placed the deceased under arrest upon a charge of a misdemeanor actually committed in his presence, when from what we have said heretofore, the state did not as a matter of law introduce evidence to justify that issue, and hence the instruction was in such respect erroneous, and the defendant was entitled to an instruction more precisely defining the duties, rights, and liabilities of a peace officer in making an arrest in a misdemeanor case where the accused is arrested and resists arrest. Defendant’s requested instruction No. 1 would have been a proper instruction under the facts developed in this case. See Tit. 22, § 193, supra, and Evans v. State, 89 Okla. Cr. 218, 206 P. 2d 247, covering arrest by a peace, officer.

Counsel for defendant contends that the court violated the terms of the statute, Tit. 22 O.S. 1941 § 835, in permitting three counsel to argue the case to the jury on behalf of the state, while the arguments for defendant were . limited to his two attorneys. The state was represented by the county attorney and three special prosecutors. The defendant was represented by two attorneys at trial.

Section 835, supra, provides:

“If the indictment or information is for an offense punishable with death, three counsel on each side may argue the case to the jury. If it is for any other offense the court may, in its discretion, restrict the argument to one counsel on each side.”

In this connection see Tit. 22 O.S. 1941 § 831, which, in part provides:

“6. Thereupon, unless the case is submitted to the jury without argument, the counsel for the State shall commence, and the defendant or his counsel shall follow, then the counsel for the State shall conclude the argument to the jury. * * * The court may permit one or more counsel to address the jury on the same side, and may arrange the order in which they shall speak, bnt shall not without the consent of the attorneys limit the time of their arguments. * *

There is no contention that the court permitted the state more time to present its case than was allowed the defense, and we have found nothing in the record to indicate that the court abused its discretion in permitting three attorneys to address the jury on behalf of the state.

Counsel for defendant complain of the tactics of the special prosecutors in persisting in trying to get incompetent evidence before the jury, particularly where Leo Williams, brother of the deceased, testified that his brother on November 16, 1946, lived with his wife and two children. The court had not permitted witness to answer to the question propounded by Mr. Haile: “Of whom does his family consist?” But the prosecution reframed the question so as to obtain an answer. The question was of course improper. Burton v. State, 16 Oída. Cr. 602, 185 P. 842. The question might have boomeranged, however, in view of the difficulty in the cafe.

Counsel complain of the effort of the special prosecutors to show by innuendo and by questions that defendant’s witness Boss Wortham had a .45 automatic pistol in the cash register of his tavern just prior to the shooting and of unfair tactics in trying to support Bob Burton’s testimony that Wortham came out of the cafe just prior to the shooting with a towel in his hand and as though something was wrapped in it, and rushing up to defendant as though he handed him something, following which the defendant started shooting. Bob Burton was the only witness for the state or defense whose testimony supported the idea that Wortham might have handed the defendant something. No evidence was introduced by the defense to support the questioning of Wortham and others about Wortham having had a .45 automatic in his tavern just prior to the difficulty, and the state to demonstrate good faith should have introduced evidence to support this theory, or have refrained from persisting in that line of cross-examination.

Complaint is made of the argument to the jury by the special prosecutors, based on improper questions, but the argument does not appear in the record. Also, many of the questions were not objected to. In Scott v. State, 80 Okla. Cr. 259, 158 P. 2d 728, 729, this court held:

“Where the argument of the county attorney is not taken down in shorthand and embodied in the record in full, and a dispute arises as to what was said in argument, Criminal Court of Appeals will follow the finding of the trial court recited in the record as to what occurred.”

See, also, Bingham v. State, 82 Okla. Cr. 5, 165 P. 2d 646.

Some of the argument complained of might have been as harmful as helpful to the prosecution.

This was indeed a tragedy that in retrospect one might conclude could have possibly been avoided. We find at the bottom exuberant and vital youth fired up by that fuel that is the force behind most of the tragedies daily reported in the press, the force that is the deciding and adverse weight in split-second decisions involving life and death, and being liquor. It may be that the young woman shown to be so handy with the ball-bat and with her small pistol was at fault and that she was the one who by use of poor judgment set in motion the chain of events leading to the death of Joe Roy Williams. We do not know, and such inquiry has no part in this case. The record is conclusive that she and the deceased did have trouble in her cafe and that the defendant officer in answer to a call of duty arrived on the scene while the cafe operator was trying to eject the deceased and his companion, Bob Burton. The evidence of the state alone conclusively shows that said persons were at least to some extent under the influence of intoxicating liquor. The record without reference to the defense evidence, is compelling and conclusive that there was lawful arrest of both witness Bob Burton and of the deceased. It was reversible error to submit this issue to the jury. The issue for the jury in this case, under proper instructions outlining the rights and duties of a peace officer, was to determine whether or not in the admitted resistance that followed the arrest of the deceased, the arresting officer used more force than was reasonably necessary in his attempt to disarm the deceased, if he was armed, or to subdue him, whether he was armed or not. The defendant is therefore entitled to a new trial.

For the reasons hereinabove stated, the judgment of the district court of McIntosh county is reversed, and the case remanded for a new trial consistent with the views herein expressed.

JONES, P. J., and BRETT, J., concur.


text:
    Ex parte TUCKER.
    No. A-11328.
    May 31, 1950.
    (219 P. 2d 245.)

      W. R. Tucker, pro se.
    Mac Q. Williamson, Atty. Gen., Owen J. Watts, and Sam H. Lattimore, Assts. Atty. Gen., for respondent.
   POWELL, J.

TMs is an original proceeding in ha-beas corpus to secure the release of the petitioner, W. R. Tucker, from confinement in the State Penitentiary at MeAlester.-

Attached to the petition for writ is a photostatic copy of an information filed in the superior court of Seminole county, in case No. 1514, on March 2, 1949, charging the defendant herein, W. R. Tucker, with the crime of rape, second degree, upon the person of Lottie Blackwell, a female person, and alleged to have taken place on or about March 15, 1948, and it being further alleged that she was then of the age of 14 years, and not the wife of the said W. R. Tucker.

The defendant claims that the trial court did not have jurisdiction to pronounce judgment against him because defendant was not represented by counsel and because the girl involved was his common-law wife. To commence with, we would point out that the burden is on the petitioner to sustain the allegations of his petition, and every presumption favors regularity of the proceedings in the criminal prosecution, and that the scope of inquiry in habeas corpus is limited to inquiry into jurisdiction of court, and while we have held that a court’s jurisdiction may be lost at the beginning of trial, in course of the proceedings, due to failure to complete the court by providing counsel for an accused who is unable to obtain counsel, yet this court has also held that a person prosecuted for crime may waive this right guaranteed him by the Bill of Rights, Const, art. 2, § 20, relative to right to be heard by counsel, except minors and incompetents. But courts indulge every presumption against waiver of fundamental constitutional rights and do not presume acquiescence in their loss. Whether one accused of crime has waived his right to the assistance of counsel for Ms defense must depend in each case upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused. Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461, 146 A.L.R. 357; In re Stevens, 81 Okla. Cr. 65, 160 P. 2d 415; Ex parte Meadows, 70 Okla. Cr. 304, 106 P. 2d 139; Ex parte Barnett, 67 Okla. Cr. 300, 94 P. 2d 18; Ex parte Norris, 88 Okla. Cr. 450, 204 P. 2d 291; Ex parte Robnett, 69 Okla. Cr. 235, 101 P. 2d 645.

Bearing these principles in mind, in this case, then, the question is whether or not the defendant, from the facts to be recited, competently and intelligently waived his right to be represented by counsel. If not, the writ should issue; otherwise, it should be denied.

The photostatic copy of the judgment and sentence on plea of guilty shows that on March 2, 1949, W. R. Tucker entered his plea of guilty to the charge, and was sentenced-to serve 15 years in the State Penitentiary in McAlester. He was not represented by counsel.

The petition has attached to it an affidavit signed by Dock Blackwell and by Annie Blackwell, alleged to be the parents of Lottie Blackwell (said affidavit is also signed by Lottie Blackwell), and in which it is set out that commencing in the month of July, 1946, and continuing until March 1, 1949, at the time of his arrest, the defendant and their daughter, Lottie, entered into a common-law marriage contract and did live together as husband and wife with the full consent and approval of the parents of Lottie Blackwell, referred to in said affidavit as Mrs. Lottie Tucker, and that during all this time they lived in a residence owned by W. R. Tucker, and that their daughter still lives in said home. The affidavit further sets out that on or about the 4th day of February, 1949, both W. R. Tucker and Lottie Blackwell had blood tests made in a local clinic in the city of Seminole preparatory to obtaining a license to enter into an orthodox marriage, but before this could be accomplished, W. R. Tucker was arrested and held in the city jail at Seminole charged with statutory rape, or rape in the second degree. That affiants visited the said jail on or about March 4, 1949, for the purpose of completing the arrangements for the statutory marriage, but that the authorities in charge of the jail would not permit the marriage. It is further set out that on March 2, 1949, Lottie Blackwell was between the ages of 15 and 18 years.

The petition sets out that the petitioner was a man 60 years of age, illiterate, not being able to read nor write, just being able to sign his name. He claims that he was denied the right to have the assistance of counsel, and claims to have requested permission to obtain counsel and offered to pay such counsel; and that he was denied the right to be confronted with the witnesses against him. He claims, as stated, that the girl in question was his common-law wife at the time he was charged and sentenced.

The warden of the penitentiary has filed a response, and supplemental response to the rule to show cause issued by this court, and denies generally the allegations in the petition for the writ. The county attorney of Seminole county has also furnished a certified copy of the minutes of the clerk of the superior court of Seminole county involving case No. 1514, together with his affidavit setting out that on March 1, 1949, he obtained a statement from W. R. Tucker and from Lotta Blackwell; that a complaint signed by Deputy Sheriff Bush was filed in the justice of the peace court of Fred Statham, Seminole District Two, and there the said Tucker had the complaint read in full and that Tucker voluntarily waived preliminary hearing and entered his plea of guilty, and on the same day information was filed in the superior court in and for Seminole county where said information was read by the judge of said court, who advised Tucker of his constitutional rights, and Tucker thereupon entered his plea of guilty to the charge of rape in the second degree, and was in open court thereupon sentenced by the judge to 15 years in the State Penitentiary. This is the maximum punishment for rape in the second degree, Tit. 21 O.S.A. § 1116. The affidavit further charges, contrary to the affidavit of the parents of the girl, that she was born December 7, 1933. No birth certificate was submitted, and the Bureau of Vital Statistics has been unable to find any record of the birth of this girl in this state.

This court has examined the signed statements executed by Lottie Blackwell and W. R. Tucker, which, contrary to the present contention, disclosed that the parents of Lotta were engaged in farming on defendant’s place, and there is no claim of a marital status, but an admission of a clandestine relationship, and their relationship mentioned by the county attorney in his affidavit attached to the response as forming part of the evidence on which he based the charge is detailed. . The handwriting of defendant is bold and very legible. There is also attached to the supplemental response an affidavit executed by the trial judge, Bob Aubrey, in which he sets out that after the information was read that he asked defendant if he had an attorney. Stated the court:

“I further advised him that he was entitled to an attorney and if he wanted time to employ or secure one, or if he was unable to do so, I as presiding judge, would appoint counsel for him. The defendant advised me in open court that he had no attorney, did not want an attorney, but wanted to enter a plea of guilty to the charge in the information. Whereupon I, as presiding judge, accepted the plea and upon recommendation of the county attorney sentenced the defendant on the same date to serve a term of fifteen years in the State Penitentiary at McAiester, Oklahoma.”

The record shows, however, that the defendant remained in jail two days before being transported to the penitentiary.

Bearing on the claim by defendant that he is illiterate and inexperienced, this court takes judicial notice of the fact that prior to the within matter, the defendant was charged in Seminole county with murder; was tried, convicted of manslaughter in the first degree, appealed his case to this court, which appeal was decided adversely to him, and he was represented by able counsel in both the trial court and on appeal; that thereafter defendant forwarded numerous letters, bearing his signature, to, and conducted fruitful negotiations with, the Pardon and Parole Board, which fact refutes his claim of illiteracy and inexperience. And the records of the court and the affidavit from both the county attorney and trial judge disclose that the defendant properly waived his right and refutes the idea that the court was not completed.

The record in this case refutes the claim of the petitioner that he was not advised of his constitutional rights, and every presumption favors regularity of the proceedings had in the trial court. Ex parte Lee, 87 Okla. Cr. 427, 198 P. 2d 1005; Ex parte Owens, 88 Okla. Cr. 346, 203 P. 2d 447; Ex parte Hampton, 87 Okla. Cr. 416, 198 P. 2d 751; Ex parte Smith, 85 Okla. Cr. 299, 187 P. 2d 1003. The affidavit of the county attorney and the affidavit of the trial judge, are positive, and all circumstances revealed by the record are in harmony with the idea that the court was properly completed, the defendant having intelligently waived his right to be represented by counsel. Having reached such a conclusion, there is nothing further for this court to consider, based on the facts recited. See the following cases where the writ was denied: Ex parte Marchbanks, 72 Okla. Cr. 380, 116 P. 2d 725; Ex parte Bradley, 72 Okla. Cr. 107, 113 P. 2d 611; Ex parte Wooldridge, 72 Okla. Cr. 292, 115 P. 2d 284; In re Miller, 82 Okla. Cr. 269, 168 P. 2d 897; In re Hazel, 80 Okla. Cr. 66, 157 P. 2d 225; In re Carpenter, 80 Okla. Cr. 78, 157 P. 2d 231; Ex parte Jones, 80 Okla. Cr. 172, 157 P. 2d 916; Ex parte Gault, 78 Okla. Cr. 172, 146 P. 2d 133; Ex parte Owens, supra; Ex parte Hall, 91 Okla. Cr. 11, 215 P. 2d 587; Ex parte Nye, 75 Okla. Cr. 155, 129 P. 2d 614.

The contention that Lottie Blackwell was the common-law wife of the defendant is overcome by the signed statement of Lottie and of the defendant, given the county attorney prior to the filing of charges. And if this girl was under fifteen years of age at the time the act of intercourse took place,' this court has held that it is impossible to consummate a common-law marriage prior to the female attaining 15 years of age. Marriage is prohibited even with the consent of the parents prior to the girl reaching 15 years of age. Scott v. State, 85 Okla. Cr. 213, 186 P. 2d 336; Tit. 43 O.S.A. § 3. But the question of the age of the girl was a factual issue to be raised in the trial court, and in this court on appeal, and not by writ of habeas corpus.

It is apparent from the record that no sufficient cause is shown for the issuance of the writ of habeas corpus. It is, therefore, denied.

JONES, P. J., and BRETT, J., concur.


author: JONES, P. J.

text:
    DEBERRY v. STATE.
    No. A-11161.
    May 31, 1950.
    (219 P. 2d 253.)

      Paul W. Updegraff and T. R. Benedum, Norman, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Owen J. Watts, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant was charged by information filed in the district court of Cleveland county with a crime of murder. The first trial ended in a hung jury and a mistrial was declared. At the second trial the defendant was' found guilty of manslaughter in the second degree and pursuant to the verdict of the jury was sentenced to serve one year in the county jail and pay a fine of $500.

Counsel for defendant have presented two propositions in their brief. First, the demurrer to the information should have been sustained. Second, the evidence is insufficient to warrant the conviction.

No review of the evidence is set forth in defendant’s brief. No argument is presented in support of the two assignments of error and no legal authorities are cited.

The proof of the state showed that the defendant visited different beer taverns on the afternoon of April 2, 1947, and drank beer. (Defendant himself testified that he drank one-half bottle of beer at one place, a bottle of beer at another place, and then drank a highball just before he started the drive which resulted in the death of John Marion Cram.)

The evidence showed that defendant had a friend, Warren Pope, who was staying at the Norman Courts, which was located near the highway in the north part of the city of Norman. After drinking highballs at the room of Pope, the two men started north on Highway 77 in an Oldsmobile two-door sedan automobile at a high rate of speed. About one and one-half miles north of Norman on Highway 77 there is a long hill which slopes from the north to the south. A young man and his girl friend, who was accompanying him, were going north in a Ford automobile and were about two-thirds of the way up the hill when the car driven by defendant approached them from the rear going about 70 miles per hour. According to the state’s evidence, defendant whirled his automobile around the car driven by Thornton just as an automobile driven by the deceased came over the crest of the hill going south. The deceased pulled his automobile over to the shoulder of the road, but the car driven by defendant struck his car with such force that both cars were practically demolished. Cram received serious injuries from which he died a short time later. There was an' abundance of evidence that the defendant was culpably negligent in the operation, of his automobile and that it was his negligence in passing the Thornton car going up the incline that was the cause of the fatal collision.

We have read the information and it sufficiently charges the offense of murder. Counsel did not point out in any particular where the information is defective. An examination of the record discloses that at the time the defendant was arraigned before the district court on May 8, 1947, he waived reading of the information and entered a plea of not guilty. Later, on November 25, 1947, a demurrer to the information was filed. The record does not disclose that the demurrer was ever called to the attention of the trial court as no disposition of it is shown in the record. Under those circumstances any defects in the information would be considered waived unless the information was so fatally defective that it wholly failed to state any crime within the jurisdiction of the district court. 22 O.S. 1941 § 512. No substantial error appearing in the record, the judgment and sentence of the district court of Cleveland county is affirmed.

BRETT and POWELL, JJ., concur.


text:
    SCOTT v. STATE.
    No. A-11222.
    May 31, 1950.
    (219 P. 2d 244.)

      George ft. Childers, Idabel, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.
   BRETT, J.

The plaintiff in error, Emma Scott, defendant below, was charged in the district court of Mc-Curtain county, Okla., with the crime of grand larceny; was tried, convicted and sentenced to serve a term of three years in the State Penitentiary, and she- appeals. The petition in error with case-made attached was filed herein on April 1.1, 1949. The defendant had 60 days within which to file a brief but has failed to this time so to do. The case was set for oral argument on April 19, 1950, and no one appearing for the defendant, the cause was submitted on the record on said date. No briefs have been filed and no appearance made subsequent thereto. Under Rule 9 of this court it is provided:

“When no counsel appears, and no briefs are filed, the court will examine the pleadings, the instructions of the court, and the exceptions taken thereto, and the judgment and sentence, and if no prejudicial error appears, will affirm the judgment.”

See Bell v. State, 85 Okla. Cr. 150, 186 P. 2d 344; Stone v. State, 86 Okla. Cr. 1, 188 P. 2d 875; Ford v. State, 90 Okla. Cr. 387, 214 P. 2d 462.

We have carefully examined the record in this case and do not find any error which in any way would prejudice the rights of the defendant.

It appears in the state’s case from the record that on the 23rd day of December 1947, the defendant, Emma Scott, Etta Mae Mathenia and Tennie Mae Howell, stole from the home of one Frank Whipple, which said premises were located in McCurtain county, Okla., certain personal property. It appears from the record that Mr. Whipple was moving to Horatio, Ark., and took only a portion of his property with him. Some five days thereafter he returned, and discovered that personal things to the value of $300 had been stolen. The three women were jointly charged but at the trial a severance was granted. On the trial of Emma Scott it appeared that she had in her possession at her home two quilts, quilt scraps and window curtains of a value in excess of $20, estimated by Mr. Whipple to be worth $20 or $30. The taking of the property was established in a voluntarily signed confession made by the defendant, Emma Scott, as well as being admitted in her testimony at the trial. This in substance constituted the evidence in the case against the defendant, Emma Scott, and is entirely sufficient to support the verdict of the jury.

We have examined the pleadings, the instructions of the court and the exceptions taken thereto, and the judgment and sentence and find no prejudicial error in the record. The record so appearing, the judgment and sentence of the district court of McCurtain county, Okla., is accordingly affirmed.

JONES, P. J., and POWELL, J., concur.