text:
    HENRY ROBERTS et al. v. STATE.
    No. A-4259.
    Opinion Filed April 26, 1924.
    (225 Pac. 553.)
    (Syllabus.)
    1. Indictment and Information — For Lewdness Must Show Culpable Single Offense or One Continuous Offense. An indictment or information based on a statute providing that “any person who willfully and wrongfully commits any act * * * which grossly disturbs the public peace or health, or which openly outrages public decency and is injurious to public morals * * * is guilty of a misdemeanor,” must state facts definitely showing a culpable single offense, or one continuous offense.
    2. Same — Indictment Bad as Duplicitous. An indictment is duplicitous under this statute where it charges that on the-day of May, 1921, Henry Roberts, a white man, and Nancy Jiles, a negro woman, did unlawfully, willfully, and wrongfully commit acts in the presence and among divers and sundry persons which did then and there greatly disturb the public peace and which did openly outrage public decency and injure public morals by lasciviously meeting and associating with one another in public and private; that they drove together publicly in a buggy; that Henry Roberts went to and remained at the home of Nancy Jiles both in the daytime and at night; that they ate together at the same table; and that they were guilty of living together in open and notorious adultery.
    3. Same — Indictment in Language of Statute Insufficient. It is not sufficient to charge one offense under this statute in the words of the statute, where the particulars essential to constitute a complete offense are not explicit enough to acquaint the accused with what he must meet upon the trial.

      4. Lewdness — Instruction on Test of .Criminality Erroneous. An instruction to the jury that the common sense of the community, and the sense of decency, propriety, and morality which most people entertain in the community in which the acts were alleged to have been committed, was the test to apply to determine whether the acts charged and proved were a crime under this statute was prejudicially erroneous.
    5. Same — Construction of Statute — Laws to Operate Uniformly. Laws against crime are intended to operate uniformly in every place within the territorial limits over which they extend. The true rule of interpretation of this statute is that any act which is so grossly immoral as to shock the sense of decency of self-respecting people as a whole, or any act manifestly indecent and repugnant to the usages and customs of civilized society, or any act which is unquestionably criminal, though not covered by any other criminal statute, is a violation of the law.
    Appeal from County Court, Bryan County; John Finney, Judge.
    Henry Roberts and another were convicted of outraging public decency and morality, and they appeal.
    Reversed and remanded for new trial.
    W. E. Utterbaek, V. B. Hayes, J. T. McIntosh, and D. S. McDonald, for plaintiffs in error.
    The Attorney General and J. Roy Orr, Asst. Atty. Gen., for the State.
   BESSEY, J.

This is a conviction for outraging public decency. The defendants in the trial court, plaintiffs in error hhre, were found guilty on an indictment charging a violation of the provisions of section 2287, Compiled Statutes 1921, which reads as follows:

"Any person who willfully and wrongfully commits any act which grossly injures the person or property of another, or which grossly disturbs the public peace or health, or which openly outrages public decency and is injurious to public morals, although no punishment is expressly prescribed therefor by this chapter, is guilty of a misdemeanor.”

At the trial both defendants were found guilty as charged, and each was sentenced to pay a fine of $250.

The indictment charged that on the- day of May, 1921, Henry Roberts, a white man, and Nancy Jiles, a negro woman, did unlawfully, willfully and wrongfully commit acts in the presence of and among divers and sundry persons which did then and there greatly disturb the public peace and which did openly outrage public decency and injure public morals by lasciviously meeting and associating together in public and in private; that they drove together publicly in a buggy; that Henry Roberts went to and remained at the home of Nancy Jiles both in the daytime and at night; that they ate together at the same table; and that they were guilty of living together in open and notorious adultery.

The proof supporting the conviction was to the effect: That Henry Roberts was an elderly white man with several children, whose wife had died many years before. That after the death of his first wife he had married again and soon af-terwards divorced his second wife. That Nancy Jiles was a negro woman of some means, and possessed of considerable real estate and live stock. That for years she had assisted Roberts in caring for his children and looking after his household cares and duties, and that he in turn assisted her in caring for her live stock and doing her chores. They lived in separate houses, not far apart, and often when Roberts was away from home Nancy stayed with his children during the night and on a few occasions had remained at Roberts’ house over night when he was at home. For a time Roberts lived in one of Nancy’s houses. Roberts borrowed money from Nancy to buy a telephone exchange, and they rode to Denison, Tex., together to consummate the deal. At and before the time this action was commenced Roberts lived with his family in the telephone exchange building. On one oc-easion Roberts, Nancy, and the children went blackberry gathering together. Nancy would bring cooked food, cakes, and other dainty edibles to Roberts’ home, and Roberts would carry uncooked provisions to Nancy’s house and do her chores, sometimes milking the cows and feeding the chickens and taking some of the milk and eggs for his own use.

There was no evidence of lascivious or adulterous conduct between the parties except as stated by Roberts’ grown daughter, who admitted that she had hostile and unfriendly feelings toward her father, who at one time chastised her for being out at night with some of her boy friends. She admitted that she had been adjudged a delinquent child by the juvenile court for improper relations with men, and that she was then an inmate of a reformatory institution for delinquent girls. She testified that on several occasions, without fixing any particular dates, her father went to Nancy Jiles’ home in the nighttime, remaining there for several hours.

The incidents related by the different witnesses concerning the business and social relations of the defendants at different times and places covered a period of several years. No particular act or occurrence was proved or relied upon as a basis for the prosecution. No overt act was specifically proved as having taken place in May, 1921, as alleged in the information. The proof did tend to show that the offense, if indeed it was an offense, was a continuous one — an unnecessary habitual association between a white man and a negro woman.

In communities where white people and negroes reside, business relations between the races are inevitable, and just how far social relations should extend is a question concerning which good people entertain different ideas. Social equality between the races is of course unthinkable; such equality would bring about the moral degradation of both races. But from the proof in this ease we cannot say, as a matter of law, that the conduct of these two individuals, exclusive of that testified to by Roberts’ daughter, so outraged public decency or was so injurious to public morals as to constitute a crime under the provisions or within the meaning of the act above quoted. Not every moral dereliction is a crime within the meaning and intended operation of this statute.

When a crime is alleged to have been committed in several different ways or by means of different methods, it may not be sufficient to charge the offense in the language of the statute. The state should charge and prove the particular act constituting the offense and the means and methods of committing it. The information should charge but one offense, though the means of committing it may be several. One accused of crime has a right to be confronted with a written accusation definitely apprising him of the identity and nature of the charge in such manner as will enable him to prepare his defense; and it is not sufficient to charge the offense in the words of the statute where the particulars essential to constitute a complete offense are not explicit enough to acquaint the accused with what he must meet upon the trial. Fletcher v. State, 2 Okla. Cr. 300, 101 Pac. 599, 23 L. R. A. (N. S.) 581; Porter v. State, 4 Okla. Cr. 654, 111 Pac. 1023; Simpson v. State, 5 Okla. Cr. 57, 113 Pac. 549; Cole v. State, 16 Okla. Cr. 103, 180 Pac. 713; 14 R. C. L. 187.

As we interpret it, this indictment charges several separate offenses. It charges that a white man and a negro woman outraged public decency by. adulterous conduct; it charges that they outraged public decency by riding together publicly; it charges that they outraged public decency by visiting together and at one another’s homes, both in the day and in the nighttime. These are separate offenses, not means of committing one offense. One of these offenses, open and notorious adultery, is a crime over which the county court would have no jurisdiction in any event. The proof adduced by the state justifies the conclusion that these were separate offenses, because the different transactions offered in evidence ■ were separate acts that occurred at various places and at times covering a period of years- — some of them beyond the jurisdiction of the court. A single offense cannot be proved cumulatively by proving separate offenses, each a part of the whole offense sought to be made out.

The information in this case is duplicitous. Under the accusation and proof some of the jurors may have concluded that the defendants were guilty because they ate at the same table; others may have concluded they were guilty because they sustained adulterous relations with one another; others may have found they outraged public decency by picking blackberries together — various ones finding them guilty for different reasons without any concurrence of all the jurors on any one of the- offenses — in effect, a verdict of guilty on general principles. For this reason the demurrer to the information should have been sustained.

Another grievous error appears in the record. The court instructed the jury that the common sense of the community and the sense of decency, propriety, and morality which most people entertain in the community in which the acts were alleged to have been committed was the test to apply to this statute. The assistant attorney general, in his brief, concurs in this view, stating that acts which might disturb the public peace, be injurious to public morals, and outrage public decency in one community might not disturb another community; that public morals and ideals might be different in one section of the country from those in another section; that it is the purpose of this law to protect the various communities of the state from any act which will grossly disturb the public peace or public morals, or .outrage the public decency of the community disturbed; and that the statute might apply and was intended to apply differently in different communities.

With this plastic, uncertain application of the statute, by which it might be made to apply differently in different communities, we cannot agree. Such a construction was not intended by the declaration of this court in the case of Fessler v. State, 12 Okla. Cr. 579, 160 Pac. 1129, which involved a notorious lascivious act of a married man with an unmarried girl; or the case of State v. Lawrence, 9 Okla. Cr. 16, 130 Pac. 508, a case relating to gambling in a public place. Both of those cases involved single, separate offenses, as distinguished from a state of continuous conduct as seems to have been the theory of the state in this case.

Be that as it may, laws against crime are intended to operate uniformly in every place- within the territorial' limits over which they extend. To hold that a penal law may or may not operate as such in a particular community, dependent upon public sentiment in that community, would in its last analysis amount to the antithesis of law and result in a kind of anarchy where every community might establish its own penal regulations. The true rule of interpretation of this statute should be and is that any act which is so grossly immoral as to shock the sense of decency of self-respecting people as a whole, or any act manifestly indecent and repugnant to the usages and customs of civilized society, or any act which is unquestionably criminal, though not covered by any other criminal statute, is a violation of the act, independent of what the people of any particular community may think about it.

For the reasons stated, the judgment of the trial court is reversed, and the cause remanded for a new trial.

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


source: Caselaw Access Project

author: BESSEY, J.

license: Public Domain

text:
    J. H. WEBB v. STATE.
    No. A-4210.
    Opinion Filed April 8, 1924.
    Rehearing Denied April 26, 1924.
    (224 Pac. 991.)
    (Syllabus.)
    1. Indictment and Information — Manner and Time of Amending Information. An information may be amended in matter of substance or form at any time before the defendant pleads, , without leave, and may be' amended after plea on order of the court' where the same can be done without material prejudice to the right of the defendant. Section 2512, Comp. St. 1921.
    2. Same — Portion of Statute Affecting Amendments as to Matters of Substance Made After Accused in Jeopardy Held Unconstitutional. That portion of the statute affecting amendments as to matters of substance made after a jury is impaneled and the defendant placed in jeopardy is inoperative as being in conflict with section 20 of the Bill of Right's of our state Constitution, which provides that the accused must first be confronted with a written accusation informing him of the nature and cause of the accusation against him.
    3. Same — Amendment Changing Street Number of Place Alleged Nuisance Held Proper. After the accused had entered his plea of not guilty to a charge of maintaining a public nuisance, it was proper by leave of court to amend the information by changing the street number designating the place where such nuisance was maintained. Such amendment is a matter of form only, not a matter of substance.
    Appeal from County Court, Oklahoma County; W. R. Taylor, Judge.
    J. H. Webb was convicted of maintaining a nuisance, and he appeals.
    Affirmed.
    Lillard & Edward's and David Tant, for plaintiff in error.

      The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

J. H. (Jim) Webb, plaintiff in error, here designated the defendant, was by information bearing date of March 24, 1921, charged with maintaining a nuisance at 918 North Broadway, Oklahoma City, by keeping a place where intoxicating liquors were bartered, sold, and given away, and where persons were permitted to congregate for the purpose of buying and drinking liquor. At the trial, September 15, 1921, by verdict of a jury, he was found guilty as charged and sentenced to pay a fine of $100 and to serve a term of 30 days in the county jail. From the judgment on this verdict, he appeals.

After the jury. were impaneled and a witness who was a deputy sheriff had testified that he found the defendant in charge of a hidden whisky plant in the second story rooms at 718% North Broadway, Oklahoma City, the county attorney asked for permission to amend the information by erasure and interlineation so as to charge the nuisance as being maintained at that address. To this amendment the defendant objected. The court ordered the amendment made, over his objections and exception. Whether or not this was prejudicial error is practically the only question involved in this appeal.

The allegations in the information were sufficiently supported by proof that the defendant did maintain a place where intoxicating liquors were kept for illegal purposes in such" manner as to constitute a nuisance, at 718% North Broadway.

Our statute, section 2512, Comp. St. 1921, provides the method of making amendments to informations. It reads as follows:

"An information may be amended in matter of substance or form at any time before the defendant pleads, without leave, and may be amended after plea on order of the court where the same can be done without material prejudice to the right of the defendant; no amendment shall cause any delay of the trial, unless for good cause shown by affidavit.”

This statute, in so far as it relates to amendments as to matters of substance made after the jury is impaneled and the defendant placed in jeopardy, if strictly construed in accordance with the language used, would be in conflict with section 20 of the Bill of Bights of our state Constitution, providing that the accused' must first be confronted with a written accusation informing him of the nature and cause of the accusation against him. An amendment to such accusation in a matter of substance after an accused had been placed in jeopardy would be an invasion of that right. Hogue v. State, 9 Okla. Cr. 521, 132 Pac. 511; Rollen v. State, 7 Okla. Cr. 673, 125 Pac. 1087; Flowers v. State, 10 Okla. Cr. 494, 136 Pac. 1041; 31 C. J. 827.

The statute above quoted is not in conflict with the Constitution and is operative so far as it relates to amendments in matters of form after the jury is impaneled, matters not essential to a complete statement of the offense. The question before us is therefore reduced to an inquiry as to whether the charging of the street number in the information was a matter of form or one of substance.

It has been held that it is unnecessary in a prosecution for keeping and maintaining a common nuisance that the information particularly designate the place of the commission of the offense, more than to charge that it was committed within the county and state where the prosecution is had. State v. Kelly, 22 N. D. 5, 132 N. W. 223, Ann. Cas. 1913E, 974; 20 R. C. L. 486.

“Substance” may be defined as that which is essential; hence when an information is adjudged insufficient in substance it is because it lacks something essential to make a legal charge of crime. 7 Words and Phrases, First Series, 6737; Bouvier’s Law Dict., Rawle’s First Rev. 1060.

This being true, it would appear that the allegation that this nuisance was maintained at a particular number was not an essential averment and therefore not a matter of substance, but one of form merely. The allegation, if made, should be supported by proof, and, if it had appeared to the court that the allegation as made misled the defendant to his hurt, the permission to amend should not have been granted. From the record before us we agree with the trial court that such amendment would not operate to the prejudice of the defendant. He was found by the officers in charge of rooms where a large quantity of corn whisky was found and where liquor plants were and had been secreted beneath hidden trapdoors in the floor under the carpets. (The officers also found there drinking vessels, bottles, and every indication that the place was used for a drinking resort where intoxicating liquors were sold. There is nothing in the record to indicate that the accused maintained another place at 918 North Broadway, and nothing to indicate that his defense was in any way affected by the amendment made in the information.

New trials predicated upon trifling errors of form sh'ould not be granted where it appears that the defendant suffered no wrong by reason thereof. This is in keeping with sound reason and with the rule of practice known as the “harmless error” doctrine, and with the statute above quoted relating to amendments.

The judgment of the trial court is affirmed.

M.A!,TSON, P. J., and DOYLE, J., concur.


author: DOYLE, J.

text:
    J. W. PHILLIPS v. STATE.
    No. A-4361.
    Opinion Filed April 29, 1924.
    Rehearing Denied June 12, 1924.
    (225 Pac. 180.)
    (Syllabus.)
    1. Courts — District Court — Adjournment of Term in One County over Intervening Term in Another. Where the times for the commencement of terms of court are fixed by an act of the Legislature, but not the duration of time of ending the terms, a district court may adjourn a term in one county of the district over an intervening term in another county of the district.
    2. Homicide — Evidence Sustaining Conviction for Murder, but not Death Penalty. In a prosecution for murder, evidence held sufficient to warrant a verdict convicting the defendant of murder, but insufficient to warrant the extreme penalty of the law, and the judgment and sentence is modified from death to imprisonment at hard labor for life.
    Appeal from District Court, Atoka County; J. H. Line-baugh, Judge.
    J. W. Phillips was convicted of murder, and he appeals.
    Modified and affirmed.
    See, also, 20 Okla. Cr. 76, 201 Pac. 392.
    Cornelius Hardy, Brown, Williams & Brown, J. G. Ralls, and P. B. H. Shearer, for plaintiff in error.
    George P. Short, Atty. Gen., and John Barry, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this ease, filed in the district court of Johnston county, charged appellant, J. W. Phillips, and Alex Watson jointly with the murder of J. M. Williams, alleged to have been committed in said county on August 3, 1921. A change of venue to Atoka county was granted. Upon his separate trial appellant was found guilty of murder, and his punishment was fixed by the jury at death. He has appealed from the judgment of conviction and sentence of death to this court.

From the evidence it appears that the building occupied by Casey’s Drug Store is situated on the corner of Main street and Kemp avenue, Tishomingo, and fronts north, with a corner entrance to the drug store.

J. M. Williams, deceased, commonly known as Marion Williams, had been sheriff of the county for three consecutive terms, and for several years very bitter feelings existed between him and appellant, arising out of appellant’s opposition to Williams in one of his campaigns for sheriff.

Appellant was engaged in the produce business and occupied a storeroom facing Kemp avenue, about 100 feet from the rear entrance to Casey’s Drug Store. The testimony of at least 10 eyewitnesses shows that about 10 o’clock in the forenoon of the date alleged appellant and his codefendant, Alex Watson, a deputy sheriff, were in Casey’s Drug Store; that Marion Williams drove up and parked his ear in the middle of Main street in front of Casey’s Drug Store, and got out of his car and walked to the entrance of Casey’s Drug Store; that he took hold of the screen door and opened it about half way, when three shots were fired from within the drug store; that he turned and started to cross Main street, angling south from his car; that appellant stepped out of the drug store with a gun in his hand, took 6 or 7 steps following him, stopped and holding his pistol with both hands took aim and shot him in the back. Williams fell on the street and died within 10 minutes. He was unarmed, and no weapon was found in his car.

W. A. Miller, as a witness on behalf of the state, testified:

“I saw Mr. Williams park his car on Main street. He got out and walked over towards the drug store. As he stepped upon the sidewalk he spoke to some parties and walked on. As he took hold of the screen door I heard a shot fired, almost instantly a second shot. As Mr. Williams turned a third shot was fired. When he was probably twenty feet from the door Phillips came out of the drug store, followed him 6 or 7 steps, and shot him in the back.”

Joe Diggs testified:

"I saw Mr. Williams just as he came on the sidewalk. He was in his shirt sleeves. As he opened the screen door of the drug store I heard three shots. He turned and humped up, and as he walked across the curbing Phillips came out of the drug store with a six-shooter in his hand and shot him in the back. I went to Mr. Williams. He was not armed. We found two nickels and a dime in one pocket and a watch in his watch pocket.”

W. N. Miller testified:

“I heard the shots, and saw Mr. Williams coming from the door of the drug store. He was about half bent, and as I walked up to him Phillips stepped out on the sidewalk and raised a large pistol with both hands and shot him in the back. Mr. Williams fell. As I took hold of him, he said, 'Uncle Bill, they have killed me.’ ”

John Reubin testified:

"I was city marshal. I was crossing Main street, and I saw the last shot fired. Mr. Williams was going east. Phillips stepped out of the drug store and leveled down with a pistol in both hands and shot him in the back. Phillips broke his gun, and handed it to Alex Watson. Then they went back into the drug store.”

The testimony of Dr. J. T. Looney, who appeared upon the scene as the last shot was fired, shows that one bullet entered about one inch below the right shoulder blade and came out four and one-half inches below the right nipple; another bullet entered below the right nipple; another entered three inches below the left nipple and another entered two inches below the point of the breast bone.

T. R. G-ibson, sheriff, testified that in a conversation with appellant on the day of the killing he said:

“Mr. "Williams was opening the door with his left hand and was fumbling around his waist with his right hand. I thought he was making preparations to get a gun and I had to shoot him.”

He further stated:

“I put three shots that your hand could cover in front here.”

He repeated this statement four or five times, and I said:

“Mr. Phillips, you say you had to kill Marion Williams, what in the devil are you going to do with that last shot?”

And he said:

“I had been aggravated with Marion and seared that he was going to kill me, and I wanted to know that I was not going to be bothered with Marion Williams any longer.”

As a witness in his own behalf appellant testified:

“I fell from a truck and skinned my knee that morning and when I went back t'o my store my daughter was there and said, ‘Papa, for God’s sake come on in here and stay in here, Mr. Williams has been here flushed up red faced as he could be, and seemed to be very angry,’ and she said, ‘Come on in the store.’ I went in, put my gun on, and went to the drug store to get some medicine for my leg; I lacked a nickel of the price and went back to my store to get the nickel. When I returned Alex Watson was in there. I said, ‘Sheriff, have a drink,’ and we had drinks and some cigars together. I was watching up the street to see if my boy was coming up the street with the feed and bring my car down; as I turned Marion was coming in this door, with this mad, bulldog look. First I seen of him liked to scare me to death. He grabbed the door with his left hand. I whirled and tore my clothes open, grabbed my gun, and shot three times. He was standing at least one step inside the door. In an instant he whirled, and went out, I could not see him for the smoke and scared to death. I stepped outside the door as quick as I could and my next thought was that he was going to his ear to get that Winchester to kill me, and I thought it was the only thing to do to save my life, and I shot him again as he stepped off the sidewalk.”

He further testified: That he had frequently seen Williams with a pistol, Winchester, and shotgun; that at the county fair Williams, who was then sheriff, charged him with selling intoxicants to an Indian and making him drunk. That in February prior to the killing Williams rode up in front of appellant’s place of business with a big six-shooter and said to appellant, "What about that story you have been telling about me being interested in Lige Deacon’s still,” and, when appellant denied this, Williams stated with an oath that he would make appellant eat everything he had said about him. That later on in the same month of February Williams rode up the street in front of appellant’s place of business on a horse with a Winchester on his saddle, and appellant had Doc Bates telephone for the officers. That about two weeks before the killing Williams, together with his brother, Bud, both drunk, idrove up in front of appellant’s place of business, and Williams said to appellant, "Do you feel lucky this morning? By God if you feel lucky let’s go — we are rearing to go.” That on the 28th day of July, 1921, Richard Lowery told appellant that Marion Williams had a conversation with him in which he stated that he wanted him to kill Phillips and offered him a ear and $50 to buy the best gun he could buy and said that he would see that all court expenses were paid. That appellant reduced Lowery’s statement to writing and showed it to the sheriff’s force. ¡That when Williams and Callen were rival candidates for sheriff appellant distributed circulars against Williams. A copy of this circular was offered in evidence and excluded by the eourt.

Louetta Phillips testified that about an hour before the killing Mr. Williams walked up to the door of her father’s store and looked in and had his hand in his coat; that she asked him, “Is there something for you, Mr. Williams?” and he shook his head and walked away; that she told her father immediately on his return to the store.

Buck Blackwell testified that before the primary election he had a conversation with Williams in which Williams said that if he did not change his mind, he (Williams) and appellant Phillips could not both live in Tishomingo.

Alex Watson, codefendant, testified:

“I was in the drug store when Phillips came in, took a drink of coke with him and a cigar, talked with him about five minutes. He said, ‘Well, I have got to go.’ He went to the door, and I turned back" towards the cigar case. I was not expecting anything. Just then it was, ‘bing, bang, bluey.’ I turned, and it looked like Williams took hold of the door. He was leaving, and Phillips went out. I looked to see if Williams had a gun. I saw he did not, and I went out and arrested Phillips.”

Several witnesses testified that the deceased had made threats against appellant’s life. There was some testimony tending to show that deceased was a violent, vindictive, quarrelsome man.

The state in rebuttal called and examined not less than 10 character witnesses, each of whom testified, over the objection of appellant, that they knew the reputation of J. M. Williams, deceased, in the community in which he lived as to being a peaceable law-abiding citizen, and it was good.

The first alleged error is in overruling appellant’s objection to the jurisdiction of the court, interposed when the case was called for trial, “for the reason that no order of court has been made and entered of record for the holding of an adjourned term of tbe January, 1922, term of the district court of Atoka county, to be held at this time,” and “for the reason that the January, 1922, term of the district court of Atoka county automatically expired by operation of law on the date provided by statute for the convening of the district court of the Twenty-Sixth judicial district in Coal county on the first Monday in March, 1922.”

The record shows that on the 20th day of March, 1922, the case was called for trial, and that the order directing the drawing of a jury, and all proceedings had at the trial, were during said month of March.

It is contended that the term of the district court in one county is terminated by operation of law upon the day for the beginning of another term in another county of the district, and for this reason the judgment appealed from is void.

The statute provides as follows:

“The time of convening the regular terms of the district court in each county in the several district court judicial districts of the state shall be on the first Monday in each of the respective months hereinafter set out in this section after each of the respective counties, to wit: * * *
“District No. 26. In Atoka county, in January and July; in Coal county in'March and September; in Johnston county, in May and November.” Comp. Stat. 1921, § 3072.
“The regular term of any district court may be adjourned from time to time, or sine die, by a resident judge of the district court or by any other district judge assigned and holding court in such district, but such adjournment shall be to a time prior to the convening of the next regular term. The regular judge, or any judge assigned, may make all orders with reference to the adjournment of the term.” Section 3087, Comp. Stats. 1921.

The record shows that at the regular January term in Atoka county this cause was continued until March, and on February 16, 1922, this cause was set for March 20, 1922.

Counsel for appellant insist that under the statute fixing the time for the commencement of the term of court in one county, the law, by necessary implication, limits the duration of the term immediately preceding in another county of the district, and, unless sooner terminated by adjournment, the term will expire, by operation of law at that time. We are of the opinion that there is no merit in this contention.

Courts are not limited in their power of adjournment to an adjournment from one day to a succeeding day. They have the inherent power to adjourn to a more distant day, when not restrained by the Constitution or statute law; and there is no such restraint upon the district courts of this state.

The Constitution provides that:

"Two or more district judges may sit in any district separately at the same time.” Const, art. 7, § 9.

The question here presented was before this court in the case of Brown v. State, 11 Okla. Cr. 498, 148 Pac. 181. We held that:

"Where a general term of the court has been once regularly convened, on the day fixed by law, it can expire only by operation of law, or by an adjournment sine die, and will not so expire by operation of law until the first day of the next general term.”

In Tucker v. State, 10 Okla. Cr. 565, 139 Pac. 998, we said:

"The rule is too well settled to admit of controversy that, where a general term of court has been once regularly convened, on the day fixed by law, it can expire only by adjournment sine die, or by operation of law, and, unless adjourned sine die, will not so expire by operation of law until the first day of the next general term.”

And see St. Louis & S. F. R. Co. v. James, 36 Okla.. 196, 128 Pac. 279. In S. W. Ins. Co. v. Douglas, 81 Okla. 232, 198 Pac. 334, the Supreme Court held:

“A district court legally opened for all general purposes continues in session until it adjourns sine die, or expires by law, and, when an adjournment is made subject to call, the term not having then expired by law, convenes, the court is legally constituted, and its acts are valid and binding.”

In the case of In re McDonald, 4 Wyo. 150, 33 Pac. 18, the Supreme Court of 'Wyoming held that:

“In the absence of any statute prescribing the duration of a term of a district court, the length of its session, or when it may adjourn, such court may adjourn a term in one county of the district over any intervening term in another county.”

In Re Hunter’s Estate, 84 Iowa, 388, 51 N. W. 20, the Supreme Court of Iowa held that:

“A term of the district court may be adjourned for 16 days, even though during the interval the judge of said court holds a regular term of court in another county.”

In the opinion it is said:

“Adjournments of the business of a term of court from day to day and from time to time, as the necessities of the situation seem to demand, is essential to the conduct of the business, and has the sanction of universal usage. Such a right is not questioned. Without the intervening term in Iowa county, the validity of the adjournment to February 17th would not, we suppose, be questioned. How does that fact affect the situation, or why should it render the judgment or order void? It is certainly without effect on the Johnson county term. Barring the fact that the same judge held the two terms, they are as entirely distinct and independent as are terms held in different districts. The fact that the same judge holds the two terms is not of importance. It is the holding of distinct and separate terms, each unaffected by the other. There is nothing in public policy or private interest that demands a rule that such an adjournment is void.”

There is nothing in the statute above quoted fixing the time to be consumed in the sessions of any district court or date of its adjournment; and in the absence of some positive law to the contrary, a district court; being a court of general jurisdiction, has power to adjourn over an intervening term, or a portion of a term held in another county of the same district during the interval of adjournment.

It follows that the adjournment over the intervening term in Coal county was valid, and the proceedings unaffected by the adjournment.

Some exceptions were taken to the rulings of the court in the admission and rejection of evidence. We deem it sufficient to say that we are of the opinion that none of them were well taken.

The instructions given by the court submitted the issues of murder and manslaughter in the first degree and the law of self-defense.

Complaint is made that the instructions given improperly submitted the law of self-defense, in that they do not cover the law on the right of pursuit in self-defense, and error is assigned on the refusal to give a requested instruction as follows:

“If the defendant was attacked by the deceased, and the defendant, under the circumstances as they appeared to him at the time, in good faith believed that it was necessary to shoot the deceased to save his own life or to protect himself from great bodily harm, he had the right to do so, and to continue shooting until he believed himself out of danger, and if, at the time he fired the last shot he believed that deceased was going to his automobile to secure a gun to return and renew the attack, the defendant had a right to fire the shot provided the defendant was justified in firing the first shot.”

As to the character of this homicide there can be no doubt. On the undisputed facts it was deliberate murder. According to his own statement on the witness stand, appellant is guilty of a cruel and cowardly assassination. While the necessity for taking human life need not be one arising out of real or actual or imminent danger in order to justify the slayer, as he may act upon the belief arising from appearances which gives him reasonable cause to apprehend danger of death or great bodily harm, although there may be no actual danger, and his guilt must depend upon the circumstances as they appeared to him, yet the danger must not be brought on by the wrongful conduct or unlawful acts of the slayer, and no person has the right to kill another through unfounded fear or cowardice. Reed v. State, 2 Okla. Cr. 589, 103 Pac. 1042.

To repel a simple assault, the person assaulted is not authorized to attack his assailant with a deadly weapon. He will not be justified in doing those acts that are calculated to destroy the life of his assailant, unless the assault is of such a character as to endanger his life or inflict on him great bodily injury, or to excite his fears as a reasonable man that such would be the result of the assault. If his assailant retreats in good faith, and he pursues and kills him with a deadly weapon, the killing cannot be justified on the ground of self-defense. The law limits him to such acts as are necessary or apparently necessary to self-defense. Gransden v. State, 12 Okla. Cr. 417, 158 Pac. 157. And in this case it was held that:

“Where the unimpeacheable physical facts squarely contradict the words of the defendant upon the witness stand, and show the theory of his testimony to be absurd, courts are not required to ignore such physical facts and give instructions not in harmony with them, but absolutely subversive of the theory they mutely and unalterably declare.”

Taken as a whole, the instructions given covered every phase of the case, and were more favorable to the defendant than he had any legal right to demand. On the undisputed facts as shown by the evidence the requested instruction was properly refused.

We have given this case' that careful study which its importance requires, and the most careful examination has revealed nothing in the record that gives us the right to say that the interests of justice require a new trial.

One of the grounds of the motion for a new trial and assigned as error is that the extreme penalty assessed by the jury in its verdict is excessive. It is urged that the jury abused its discretion in assessing the death penalty, and that the judgment and sentence should be modified to imprisonment for life. Counsel for the state announced that they do not oppose such modification.

In a capital case, the law of our state in its great humanity allows the jury, after they have first determined the question of guilt, to assess the punishment, which may be death or imprisonment for life at their discretion (section 1739, Comp. Stats. 1921) and, even after the jury say that the defendant should suffer death, this court, in furtherance of justice, has the power to modify the judgment to imprisonment for life at hard labor (section 2820, Comp. Stats. 1921). Fritz v. State, 8 Okla. Cr. 342, 128 Pac. 170; Owen v. State, 13 Okla. Cr. 195, 163 Pac. 548; Westbrook v. State, 14 Okla. Cr. 423, 172 Pac. 464; Chambers v. State, 16 Okla. Cr. 238, 182 Pac. 714; Wilson v. State, 17 Okla. Cr. 47, 183 Pac. 613.

No more solemn duty can be imposed npon the courts than the duty of protecting, and the duty of taking human life. To take the life of a human being is an awful thing, even when it is taken by the law.

Carefully considering the whole testimony in the ease, we feel constrained to say that we find but few palliating circumstances in behalf of appellant. However, it appears that each had often threatened to kill or injure the other, that their animosity and enmity arose out of campaign canards, and that the deceased had often been overbearing and domineering in his conduct toward appellant. In this respect it differs from murder committed in the perpetration of a felony.

For the reasons stated, we are of opinion that the punishment imposed is excessive, and that justice requires a modification of the judgment and sentence of death to that of imprisonment at hard labor in the state penitentiary for life. As thus modified, the judgment herein is affirmed.

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


author: PEE CUEIAM.

text:
    In re ELMER GREEN.
    No. A-4487.
    Opinion Filed April 30, 1924.
    (225 Pac. 1117.)
    Application of Elmer Green for ‘writ of habeas corpus.
    Cause dismissed.
    E. C. Patton, for petitioner.
    The Attorney General, for respondent.
   PEE CUEIAM.

This was an application to this court for writ of habeas corpus by Elmer Green, filed November 1, 1922, alleging illegal restraint by Jack Smith, sheriff of Canadian county, upon an order of commitment based on a verdict of a jury returned October 30, 1922, in the county court of Canadian county, finding petitioner guilty on a charge of unlawfully manufacturing intoxicating liquor, alleging that said restraint is illegal because the 11th day of November, 1922, was set for judgment and sentence, and said court refused to allow bail during the interim, and asking that bail be allowed. Whereupon a rule to show cause was entered and issued why the writ of habeas corpus should not be awarded as prayed for, and it was ordered that petitioner be admitted to bail in the sum of $1,000, as by law required, the same to be approved by the court clerk of said county. Upon the return day petitioner appeared by his counsel and asked that the rule be discharged and the cause dismissed. The rule is therefore discharged, and the petitioner is remanded to the custody of respondent, and the cause dismissed.


text:
    OSCAR LEMMING v. STATE.
    No. A-4460.
    Opinion Filed April 30, 1924.
    (225 Pac. 186.)
    (Syllabus.)
    Intoxicating Liquors — Evidence Supporting Conviction for Illegal Possession. In a prosecution for haying possession of intoxicating liquors with intent to sell the same, evidence held sufficient to sustain the conviction.
    Appeal from County Court, Oklahoma County; W. E. Taylor, Judge.
    Oscar Lemming was convicted of violating the prohibitory liquor law, and he appeals.
    Affirmed.

      Moman Pruiett and O. C. Patterson, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error, Oscar Lemming, was convicted on an information charging illegal possession of intoxicating liquor, and his punishment assessed at confinement in the county jail for 30 days and a fine of $50. From the judgment entered on the verdict he appealed, by filing in this court on October 2d a petition in error with case-made.

The evidence shows that W. I. Eads and four or five other officers of Oklahoma City, in executing a search warrant against the defendant’s premises on West Thirty-Third street, Oklahoma City, found in the basement a still and about a gallon of corn whisky, and about a gallon of wine and 20 gallons of mash, and found in the garage three 30-gallon kegs of mash, working, and also found about 20 gallons of whisky concealed behind the ceiling in the garage.

The errors assigned are that the verdict is contrary to law and the evidence and that the court erred in admitting incompetent testimony and in its instructions to the jury. An examination of the record discloses that this appeal is wholly destitute of merit. The evidence of guilt is conclusive, and no material error is apparent.

The judgment and sentence appealed from is therefore affirmed.

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


text:
    Ex parte HARRY ADAMS (two cases). Ex parte AMOS NORTH.
    Nos. A-4956 to A-4958.
    Opinion Filed May 2, 1924.
    (225 Pac. 188.)
    (Syllabus.)
    1. Bail — Burden on Petitioner in Habeas Corpus to Show Facts Entitling Him to Bail. Upon an application for writ of habeas corpus to be let to bail after commitment for a capital offense by an examining magistrate, the burden is upon the petitioner to show facts sufficient to entitle him to bail, when those facts do not appear from the evidence adduced on the part of the prosecution.
    2. Bail — Evidence Insufficient to Create Reasonable Doubt of Petitioner’s Guilt — Refusal of Bail. A mere conflict of testimony, even upon a material issue, does not of itself entitle a prisoner held for murder to be admitted to bail; if, upon a consideration of all the evidence introduced on the application for bail, the court is of the opinion that it is insufficient to create a reasonable doubt of the petitioner’s guilt of a capital offense, bail will be refused.
    3. Disposition of Proceedings. Upon these applications, evidence considered and bail denied.
    Habeas corpus by Harry Adams and others to be let to bail.
    Writs denied and bail refused.
    Wash Hudson and John Ward, for petitioners.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., John Goldsberry, Co. Atty., and Ed. Crossland, for respondent.
   DOYLE, J.

Harry Adams and Mrs. Harry Adams and Amos North filed in this court on December 15, 1922, their respective petitions wherein it is alleged that they are unlawfully imprisoned and restrained of their liberty in the county jail of Tulsa county by R. D. Sanford, sheriff of said county; that the cause of said restraint is that upon a preliminary hearing, held October 4, 1928, before Saul A. Yager, judge of the common pleas court of Tulsa county, presiding as examining magistrate, upon a complaint jointly charging petitioners with the murder of Mrs. Thomas Stanfield, alleged to have been committed in said county on September 18, 1923, each petitioner was held to answer said charge to the district court of Tulsa county.

Petitioners each aver that they are not guilty of the crime of murder charged, and that upon the evidence introduced at said preliminary examination, together with the affidavits of certain other persons presented herewith, it is shown that the proof of guilt of the charge of murder is not evident, nor the presumption thereof great, and that therefore they are entitled to be let to bail.

It is also shown that November 20th, said petitioners applied to Albert C. Hunt, one of the judges of the district court of Tulsa county, for writs of habeas corpus to be admitted to bail, and upon a hearing had bail was denied. On the return day of the rules to show cause issued and entered herein, the eases were consolidated and orally argued. Upon the conclusion of the arguments the decision of the court was announced, the writs denied and bail refused.

By numerous decisions of this court it is held that the burden of proof, after commitment, is on the accused on an application for bail, where the charge is a capital offense, and the petitioner is required to show facts sufficient to entitle him to bail when those facts do not appear from the evidence offered on the part of the state on the preliminary examination, and if upon a consideration of all the evidence introduced on the application for bail, the court is of opinion that it is insufficient to create a reasonable doubt of the petitioner’s guilt of a capital offense, bail will be refused. In re Leggett, 12 Okla. Cr. 11, 150 Pac. 1121; Ex parte Looper, 12 Okla. Cr. 437, 158 Pac. 290.

It is also well settled that a mere conflict of the testimony, even upon a material issue, does not of itself entitle a prisoner held for murder to be admitted to bail. The evidence must be considered as a whole, and when so considered, unless a well founded doubt of the prisoner’s guilt of murder is generated, bail will be denied.

Without entering into a discussion of the facts we deem t sufficient to say that in our opinion the petitioners are not entitled to bail as a matter of legal right.

It is therefore considered and adjudged that the writs be denied and bail refused.

MATSON, P. J., and BBSSEY, J., concur.


text:
    J. A. WEST v. STATE.
    No. A-4457.
    Opinion Filed May 3, 1924.
    (225 Pac. 556.)
    (Syllabus.)
    1. Lewd ness — Indecent Acts in Private by Man with Female .Child not Within Statute. The commission of reprehensible indecent acts by a man of mature years with a female child of tender years, where no physical injury'’’resulted, and where the acts complained of were done in private, does not come within the provisions of section 2287, Compiled Statutes 1921, commonly known as the statute against outraging public decency.
    2. Statutes — Scope and Operation of Penal Statute not Enlarged Beyond Commonly Accepted Meaning. Courts will not ordinarily, by judicial construction, enlarge the scope and operation of a penal statute beyond the commonly accepted meaning of the language of the statute, or of its clearly expressed limitations.
    Appeal from County Court, Carter County; M. F. Winfrey, Judge.
    J. A. West was convicted of outraging public decency, and he appeals.
    Reversed.

      Bass & Handy and H. A. Hicks, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

J. A. West, plaintiff in error, here referred to as the defendant, was by verdict of a jury, rendered August 16, 1922, convicted of a violation of section 2287, Compiled Statutes 1921, commonly known as the offense of outraging public decency. His punishment was fixed at a fine of $500 and imprisonment in the county jail for a term of 12 months. From a judgment on the verdict, he appeals.

The statute upon which this accusation was based (section 2287, supra), reads as follows:

"Any person who willfully and wrongfully commits any act which grossly injures the person or property of another, or which grossly disturbs the public peace or health, or which openly outrages public decency and is injurious to public morals, although no punishment is expressly prescribed therefor by this chapter, is guilty of a misdemeanor.”

The defendant, a man 40 years of age, was charged with grossly immoral conduct with a female child 9 years old, by holding her in his lap and taking indecent liberties with her person. The offense is said to have been committed in a private house then being built by the accused and nearly completed, in the vicinity of a public playground in Ardmore, where children were in the habit of assembling for purposes of amusement.

There is testimony tending to show that the mother of the child and the accused had had some difficulty on account of the disposition of some insurance money, and that the prosecution would abate in the event the money was paid to the mother.

The information charges, first, that the indecent act set out constituted an assault which was grossly injurious to the person of the child; and, second, that the acts charged openly outraged public decency.

Defendant testified in his own behalf and denied the accusation in toto. Defendant claims that the evidence is insufficient to support the verdict, and that, if the evidence of the child were indeed true, the same failed to support some of the essential averments of the information.

The testimony of the child was to the effect that an indecent assault and battery had been committed upon her person, but without any physical injury to her person. The act, according to her testimony, was committed in a private place. There was no testimony by any other witness that the accused committed an indecent act. No showing was made that the act was done in a manner “openly outrageous to public decency and injurious to public morals,” as set out in the information and as provided by statute. If the testimony of the child is to be believed, the conduct of the accused, reprehensible as it was, was not open and notorious within the meaning of this statute. As was pointed out by this court in the case of Roberts et al. v. State, 27 Okla. Cr. 97, 225 Pac. 553, in an opinion rendered April 26, 1924, this statute was not 'designed to correct every moral dereliction. It is in a sense a police regulation, designed to protect the public peace by suppressing open and notorious acts having a tendency to outrage public decency and corrupt the public morals. The facts proved in this case do not bring it within this rule.

The terms of the statute might have been made broad enough to cover an outrage such as was charged here, and to some extent proved. But this court would not be justified in enlarging the scope of operation of a blanket criminal law beyond the commonly accepted meaning of the words of limitation contained in the statute. In this state we have no constructive crimes or crimes by implication. The courts are bound to administer criminal law within the express limitations fixed by the Legislature. State v. Clifford, 3 Okla. Cr. 421, 106 Pac. 557; 25 R. C. L. Statutes, §§ 217, 218, 222, and cases cited.

From the record it would seem that the evidence tending to establish that the defendant was guilty of indecent conduct and that tending to disprove it was about evenly balanced. This girl of tender years, under the influence of an unfriendly mother, testified to facts indicating that the accused was a moral degenerate. He, on the contrary, denied any improper conduct. None of the other witnesses could enlighten the jury on this issue, except to state that they saw the accused and the little girl in and about this house on this particular evening.

It will not be necessary, and indeed would be improper, for this court to decide this issue of fact, but for the other reasons mentioned the cause should be reversed, and it is so ordered.

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


text:
    WAITE LONGSHORE v. STATE.
    No. A-4301.
    Opinion Filed May 3, 1924.
    (225 Pac. 573.)
    (Syllabus.)
    1. Trial — When Instructions as to Principal and Accessory Proper. All persons concerned in the commission of a felony, whether they directly commit the act constituting the offense or aid and abet in its commission, must be prosecuted, tried, and punished as principals, and no additional facts need be alleged in any information against such an accessory than are required against his principal. Section 2574, Compiled Statutes 1921.

      (a) It is only where the proof discloses that an accused was the principal offender in one offense and at the same time aided another to commit a like offense that the instructions to the jury should point which of the two is relied upon for a conviction.
    2. Trial — Instruction on Weight of Evidence Supporting Good Character Erroneous. An instruction on the weight and import of evidence in support of the good character of the accused discussed and criticized in the opinion.
    3. Larceny — Evidence Insufficient to Sustain Conviction. Evidence of guilt of larceny predicated solely on possession of recently stolen property, in view of conflicting inferences and presumptions arising therefrom, held insufficient in this case to support the verdict.
    Appeal from District Court, Major County; J. C. Rob-berts, Judge.
    Waite Longshore was convicted of larceny of an automobile, and he appeals.
    Reversed and remanded.
    Tom E. Willis and B. F. Willett, for plaintiff in error.
    The Attorney General and John Barry, Asst. Atty. Gen., for the State.
   BESSEY, J.

Waite Longshore, plaintiff in error, here referred to as the defendant, was convicted in the district court of Major county on January 13, 1922, of the larceny of an automobile, the property of one J. B. Nightengale, and his punishment was by the court assessed at imprisonment in the state penitentiary for a term of five years.

The defendant, a young man 24 years of age, an ex-service man, was a resident of Buffalo, Okla. He came to Fair-view on November 11, 1921, in search of work, and that evening met H. B. Mitchell, a man whom he had known in Harper county. The defendant was by trade an automobile mechanic and had been going from place to place and from town to town inquiring at the various garages for work. He told Mr. Mitchell on this evening that he was out of work and that he planned returning to Seiling, Okla., where he had last been employed; that he was out of money. Mitchell gave him 50 cents.

Defendant says he saw Mitchell again on the next evening, out near a bear and pony show, and that later in the evening he met a man who said his name was Ellis and who said he was going to drive to Seiling in a car; that he first met Ellis on the street, and that he later met him again, and Ellis asked him if he still wanted to go to Seiling. Defendant said he did, and they walked together to where some cars were parked, and there Ellis said to the defendant, pointing to a Ford touring car, "That is my car.” Ellis got into the car, and defendant cranked it and then got in with him. They turned around in the street and started west, and as they drove across the street defendant again saw Mitchell and called out to him that he was on his way to Seiling.

Defendant and Ellis went straight west out of town, and when they had gone some 20 miles they ran out of gasoline. They pushed the car out onto the roadside and went to the home of Joe Ward, where they saw a light burning; this was about 11 o’clock at night. They informed Ward that they were out of gasoline. After some conversation, defendant told Ward where he lived and that he was a brother-in-law of Mr. Broberg, whom Mr. Ward knew. Ward invited the defendant to spend the night with him and gave him a half gallon of gasoline to get his car to the house with. Ellis excused himself from staying all night and stated that he would walk on to Seiling and that defendant could meet him there the next day, after procuring some gasoline. He left and was not seen again.

The defendant remained all night at the Ward home, and the next morning Ward told him that he would have to repair his car before he could go to Seiling to get more gasoline. Ward phoned a neighbor, Mr. Noble, who was a mechanic and had automobile tools, to come over and assist him. 'The three spent two or three hours in repairing Ward’s car, and Ward then went on to Seiling to get more gas. While he was absent, Noble offered to trade his car for the ear here in question, and defendant told Noble that he could not trade because the ear did not belong to him. Noble also wanted an air pump that was in the car, and defendant said the pump did not belong to him.

After Ward returned with the gasoline, defendant started on his way to Seiling and was met by the owner of the ear and the deputy sheriff, who placed him under arrest. At the time of his arrest, defendant made some contradictory statements as to his name and how he came into possession of the car. Presently, however, he corrected these statements to the arresting officer, and, when taken to the county attorney’s office, he told the county attorney his true name and how he happened to be in possession of the car.

At the trial the defendant introduced eight witnesses who testified that they had known the defendant for years and that his reputation for honesty, integrity, and industry was good, and that he had always been a law-abiding citizen. Among these witnesses was a deputy sheriff, the cashier of the First National Bank, a county judge, and an ex-county judge, all of Buffalo, defendant’s home town.

Defendant’s assignments of error relate to instructions given by the court, and the alleged insufficiency of the evidence to support the verdict.

As will be seen from a perusal of the statement of facts, defendant was found and arrested while in possession of the stolen car. Defendant’s claim is that he came into possession of the car honestly, at the invitation of Ellis, who presumably stole the car. The conviction rests upon the theory of the state that the defendant was a principal in the theft, or that he knowingly aided and abetted Ellis in the asportation of the stolen car. Upon that point the court instructed the jury as follows:

“The statutes of this state provide that all persons concerned who knowingly, wrongfully, and feloniously are interested in the commission of a crime, whether it be a felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, are principals.”

Relying upon the holding of this court in the case of Gracy v. State, 13 Okla. Cr. 643, 166 Pac. 442, the defendant says that the instruction quoted was inapplicable and prejudicial in a ease where the defendant’s conviction rests upon testimony showing, or tending to show, that he merely aided or abetted another in committing the theft. The claim so made is untenable under the circumstances in this case. Section 1521, Comp. Stat. 1921, provides:

“All persons concerned in the commission of crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, are principals.”

Section 2574, Comp. Stat. 1921, provides that all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense or aid and j abet in its commission, must be prosecuted, tried, and pun- s ished as principals, and that no additional facts need be al-; leged in any information against such an accessory than are' required against his principal. Etter v. State, 11 Okla. Cr. 208, 144 Pac. 560; Bundy v. State, 16 Okla. Cr. 481, 184 Pac. 795; Radke v. State, 17 Okla. Cr. 230, 187 Pac. 500; Sanditen v. State, 22 Okla. Cr. 14, 208 Pac. 1040.

The reason why the above instruction was not proper in the Graoy Case, supra, was that in that case the proof showed that following one another two persons had committed rape upon the person of a female, under circumstances indicating that the accused, besides committing the crime himself, aided and abetted the other in committing the act. Clearly, an instruction such as was given, where two separate crimes had been committed, one in which the accused was the principal actor and the other in which he aided and abetted another, was misleading, but this instruction correctly states the law where but one offense is proved, as in this case.

The next assignment of error urged is that the court refused to give the following instruction:

"Gentlemen of the jury, the court instructs you that the instructions which the court has given you embody the law of this case, and the rules by which you are to determine the issues, aided by such knowledge as you each possess in common with all persons of average intelligence.”

The court did instruct the jury that they were the exclusive judges of the facts, the credibility of the witnesses, and the weight to be given the testimony of each; that they should take into consideration the whole of the evidence, giving to the different parts such weight as they thought the same were entitled to receive, etc. We hold that the instruction given was sufficient upon that point.

Defendant complains next of the refusal of the court to give the following instruction:

"Gentlemen of the jury, the court instructs you that the defendant has offered evidence touching his good character and general reputation in the neighborhood in which he lives as to truthfulness, honesty, morality, and industry, and as to his being a law-abiding citizen; and in this connection the court instructs you that such evidence is competent for your consideration together with all the other evidence in the ease.”

The court, in lieu thereof, gave the following:

"You are instructed that the law presumes that the defendant is a man of good moral character until the contrary is established by the evidence. In addition to this presumption, the defendant has offered evidence in this case for the purpose of showing that at and prior to the time of the alleged offense he was a man of good reputation for honesty, truth, and veracity in the community wherein he resides, and a man of good moral character. You are instructed that while this of itself is not a defense, you have a right to consider this class of evidence in connection with all the other evidence in this case in determining the guilt or innocence of the defendant.”

The language used, "you are instructed that while this (good character) of itself is not a defense, you have a right to consider this class of evidence in connection with all the other evidence in this case in determining the guilt or innocence of the defendant,” is technically a correct statement of law. As a declaration of fact it is incorrect; that is to say, sufficient positive proof of good moral character under some circumstances may be sufficient to warrant an acquittal,' and so, according to the common understanding of men not versed in law, might be regarded as a defense. The language here used, according to the common understanding of jurors, might be erroneously construed by them to mean that evidence of good moral character was of little importance — an intimation by the court as to the weight of this kind of evidence. The declaration, "you have a right to consider this class of evidence,” might reasonably imply that, while jurors have that right, they also have the right to entirely disregard it.

An instruction similar to the one above quoted was disapproved by this court in the case of Hall v. State, 12 Okla. Cr. 20, 151 Pac. 487; the instruction in that case being:

“You are further instructed that the defendants in this action have offered proof as to their good character in the community in which they live as law-abiding citizens. Yet this fact does not entitle the defendants to an acquittal in this case, but such facts as good character may be taken into consideration by the jury in determining the guilt or innocence of the defendant.”

The court, in commenting upon this instruction, said:

“In some instances in which guilt would be otherwise established beyond reasonable doubt, evidence of good character may justly produce an acquittal.”

In the case of McCullom v. State, 22 Okla. Cr. 46, 209 Pac. 781, the court lays down this rule:

“Ordinarily, an instruction on character evidence should be to the effect that such evidence should be weighed with all the other facts and circumstances in the ease tending to raise a reasonable doubt as to the guilt of the accused, without designating or pointing out to the jury any particular issue involved.”

In the case of Adair v. State, 15 Okla. Cr. 619, 180 Pac. 253, the court said:

“The state offers a high premium for good character. * * * Proof of such character may generate a reasonable doubt of guilt and thus work out an acquittal, where without such good character a proper conviction would result.”

In this case practically the only incriminating circumstance was the possession of property recently stolen. The defendant offered what appears a reasonable explanation of this possession, indicating his innocence, which, together with his statements to others during the time of his possession, is sufficient in our judgment to overcome the inference that he was or might have been the thief. In addition, he offered an array of reputable witnesses from his home community, many of them men of prominence, who vouched for Ms good character. We think that under such circumstances the instruction as given was defective and probably misleading; the statement that “proof of good character is no defense, but you have a right to consider this class of evidence,” without further qualification or explanation, would cause the average juror to misinterpret the true rule.

Another instruction requested was as follows:

“Gentlemen of the jury, the court instructs you that after the consideration of the whole case, if any juror entertains a reasonable doubt of the guilt of the defendant, it is the duty of such juror so entertaining such reasonable doubt not to vote for a verdict of guilty, or be influenced in so voting, for a single reason that a majority of the jury should be in favor of such a verdict of guilty.”

We are not ready to approve of this instruction as offered. The better plan would be to state it conversely, to the effect that all the jurors should concur in finding the defendant guilty beyond a reasonable doubt. However that may be, the other instructions given by the court touching upon reasonable doubt were sufficient upon that point.

The last assignment urged, that the evidence is insufficient to support the verdict, considered with the inferences and presumptions arising from the evidence in the case, leads us to conclude that this assignment should be sustained. The inference of guilt arising from possession of the stolen property was reasonably explained. In addition to that fact, there were the inferences and presumptions arising from good character, so that upon the whole case it seems that the evidence did not point to the guilt of the accused beyond a reasonable doubt.

For this reason, and for the defective and misleading instruction before discussed, the cause is reversed and remanded.

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


author: PER CURIAM.

text:
    HENRY RAINES v. STATE.
    No. A-4961.
    Opinion Filed May 7, 1924.
    (225 Pac. 553.)
    Appeal from District Court, Haskell County; E. P. Lester, Judge.
    Henry Raines was convicted of tbe crime of manslaughter in the first degree, and he appeals.
    Remanded, with directions to abate.
    Fred H. Fannin and W. H. Brown, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Henry Raines, was convicted in the district court of Haskell county of the crime of manslaughter in the first degree for the killing of one Allen Wilson, alleged to have occurred on the 26th day of April, 1921. Judgment was rendered on the 28th day of July, 1923, and defendant was sentenced to serve a term of four years in the state penitentiary. Petition in error and case-made were filed in this court on the 17th day of December, 1923.

Since the appeal was taken and before the final submission of the cause, suggestion of the death of plaintiff in error has been made, and his counsel of record, as well as the attorney general, have for this reason filed a motion to abate the cause, stating that plaintiff in error died on the 29th day of February, 1924.

In a criminal action the purpose of the proceeding being to punish the defendant in person, the action must necessarily abate upon his death. It is therefore considered and adjudged that the proceeding in the above entitled cause, and especially under the judgment therein rendered, do abate. It is so ordered, and the cause is remanded to the district court of Haskell county, with directions to enter its appropriate order to that effect.


author: MATSON, P. J.

text:
    CICERO BUFORD v. STATE.
    No. A-4398.
    Opinion Filed May 9, 1924.
    (225 Pac. 568.)
    (Syllabus.)
    1. Larceny — Evidence Sustaining Conviction. Evidence reviewed, considered, and held sufficient to sustain the verdict and judgment.
    2. Larceny — Burden of Proof as to Truth of Explanation of Possession of Stolen Property. The onus of proving the truth of his explanation is upon one in whose possession stolen property is found, when found under such circumstances as to call for an explanation, and the explanation given is not natural and probable, and not such as all reasonable minds would agree on.
    Appeal from District Court, Washington County; J. R. Charlton, Judge.
    Cicero Buford was convicted of the crime of grand larceny, and his punishment fixed at imprisonment in the state penitentiary for 2% years, and he appeals.
    Affirmed.
    On the 17th day of August, 1920, the county attorney of Washington county filed in the district court of said county an information charging the plaintiff in error, Cicero Buford, hereafter referred to as defendant, with the crime of grand larceny, alleged to have been committed on the 16th day of July, 1920, by stealing one K. C. door, painted lead color on the outside and white on the inside, and of the value of $6, one five-panel cross-bar door, painted natural wood color on one side and white on the other side of the value of $6, five full two-sash windows, all painted natural white color on the inside and black on the outside and of the value of $35, five screens to fit said windows of the value of $20, and all of such property of the aggregate value of $67 and the personal property of the Delaware Cherokee Oil Company, etc.
    After the issues were formed and a continuance of the trial had on the application of the defendant, the cause came on regularly for trial on the 5th day of January, 1922, pursuant to an assignment theretofore made, when both sides announced ready for trial and a jury was called and impaneled and sworn. A verdict of guilty was returned with punishment fixed as above stated.
    The evidence is substantially as follows:
    “H. J. Lisle, a witness for the state, testified that in July, 1920, he was working for the Delaware Cherokee Oil Company, looking after their interests for pumping a part of their leases; that on the 16th day of July, the said Delaware Cherokee Oil Company were the owners of some windows, doors and screens, which were kept in a house that the company bought from the Mid-Continent Company in Washington county, Oklahoma; that said property was on said premises on the 15th day of July, 1920, and was missed on the morning of the 16th, on Friday; that witness immediately reported said loss to the sheriff of Washington county; that witness next saw said property on some premises in the north part of the city of Bartlesville, where the defendant and two other men were engaged in building a house; that defendant was hanging one of the doors in the house he was building when the property was discovered (witness then proceeded to describe the property and to testify to the value thereof); that Mr. Creed, a deputy sheriff, and Mr. Eakin were with him when the property was discovered.
    “Witness then details what occurred as follows: 'Well, Mr. Creed came up to Mr. Buford and spoke to him and asked him, if it was a fair question, whose house that was, and Mr. Buford said it was his, and'Mr. Creed asked him, if it was a fair question, where he got those doors and things, and Mr. Buford said that he had had them for a long time, and Mr. Creed told him that there was some stuff that had been taken from out here in the country and that we were looking for it, and “these fellows claim this stuff,” and then Mr. Creed asked Mr. Buford would he show him (Creed) where he (Buford) got that stuff, and Buford says, “I have had it for a long time,” and Mr. Creed asked him something else about it, and Mr. Buford’s answer was the same — “I have had it for a long time.” Q. Did Mr. Creed arrest him at that time? A. Yes, sir.’ ”
    On cross-examination the witness testified in part as follows:
    “Q. Do you remember specifically just what property Mr. Creed mentioned to him (Buford) ? A. Yes, sir; doors, windows, and screens. Q. Were there any other doors, windows, or screens there, Mr. Lisle? A. Not that I saw. Q. The property that you claim as belonging to your company, none of that stuff had been used there — had been installed in that house of Buford’s, had there? A. Yes, sir; some of the window frames were in. Q. How many window frames do you remember were in? A. I think he had two of them in, and three more sitting there to; be put in. Q. I mean your sashes? A. Yes, sir. Q. How many window openings were there in Mr. Buford’s house? A. Five. Q. How many door openings? A. Two. Q. He was just building that house, was he? A. Yes, sir. Q. What time was it that you got down there and found this property? A. On Monday afternoon.”
    Clyde Eakin, a witness for the state, testified substantially as did the witness Lisle.
    J. J. Creed, deputy sheriff, a witness for the state, testified in part as follows:
    “Q. Did you arrest the defendant here? A. Yes, sir. Q. I will ask you to tell where you arrested him? A. On North Park avenue — I forget the number. Q. Who went out there with you? A. Messrs. Lisle and Eakin. Q. H. J. Lisle and Clyde Eakin? A. Yes, sir. Q. Was there some property there that was identified by Mr. Eakin and Mr. Lisle ? A. Yes, sir. Q. What did that property consist of, if you remember? A. Five screens, five windows, and two doors. Q. Did you have any conversation with the defendant there at that time? A. Yes, sir. Q. About this property? A. Yes, sir. Q. Tell the jury what that conversation was about? A. Well, when I went in I spoke to him and asked him where he got those doors, windows and screens, and he said, ‘I have had them a long time.’ Well, I said, ‘Could you tell me where you got them?’ and he said, ‘I have had them a long time’, and then I turned around to Lisle and Eakin and asked them if they could identify that property, and they said, ‘Yes,’ and I asked them how, and Mr. Lisle said that the first time the windows were painted they were stained brown and one white, and then he spoke about a crack on one of the screens —one side, and he told about the name of this door, and said on the inside of one of the doors we would find a couple of tacks and a string across there where a curtain had been hanging. Q. Had you informed the defendant that some doors, windows and screens had been stolen? A. Yes, sir. Q. Did you have any further conversation with him after you had asked him the first few times? A. Yes; I asked him if he would go with me and show me where he had gotten that stuff, and he simply replied that he had had it a long time, and I then said, ‘Will you tell me where you got it so that I can go and find out about it?’ and he made the remark again, ‘I have had it a long time.’ Q. Who else was there besides the defendant? A. Tom Stapp and Joe Crit-tenden. Q. Did the defendant say anything about them? A. When I asked him, he said that the house was his. Q. Did he say anything about those two men? A. No, sir. Q. To refresh your recollection, didn’t he say that those two men didn’t have anything to do with it? A. I asked Joe Crit-tenden, and he said that they were just working there for Buford, and then Buford spoke up and said that they were just working for him. Q. Were there any other doors, windows, or sash there? A. No, sir.”

      Defense.
    Cicero Buford, defendant, testified in part as follows:
    "Q. Where were you living a year ago last — on the 16th day of July, 1920? A. I was living at the Gladstone hotel at that time. Q. Where had you been living prior to that? A. On the farm out here a short ways — a few miles. Q. Where had you been previous to that time? A. I had been backwards and forwards — a few days in town and back to the farm. Q. Had you been away from here? A. No, sir. Q. Were you in the service? A. Yes, sir. Q. Went across? A. Yes, sir. Q. Did you get an honorable discharge? A. Yes, sir. Q. Are you married? A. No, sir. Q. Were you married at that time? A. Yes, sir. Q. You have heard the testimony that has been offered here about Mr. Creed and those other gentlemen finding some stolen property at your place? A. Yes, sir. Q. Where is that place located? A. On North Park avenue. Q. Here in Bartlesville? A. Yes, sir; about two blocks west and about a block north of the ice plant. Q. What were you doing down there? A. Building this house on the lot there. Q. Who was helping you? A. Tom Stapp and Joe Crittenden. Q. How long had you been engaged in the building of that house at the time this happened — at the time this property was found out there? A. Ten or fifteen days, something like that. Q. Did you have some doors, sash, and screens out there? A. Yes, sir. Q. Did you own any other property of a like kind at that time? A. Yes, sir. Q. Where was it located? A. In Osage county, on the farm. Q. How far is that from the lot on which you were building this house? A. 'Twelve or fifteen miles. Q. When you started this house that you were building, what were you going to do for doors, sash, etc.? A. I was going to bring this in from the farm. Q. Where did you get the doors, sash, and so on that Mr. Creed found out there? A. Why, a fellow drove up to my house, about 8 or 9 o’clock, shortly after we had commenced work and 'hollered,’ and I went out to see who it was, and he wanted to know if I could use any property of that kind — he had these doors and stuff on a little spring wagon, and I climbed' up on the wagon and looked it over and asked him what he wanted for it, and he told me that he wanted $40 for it, and so I told him I would give him $35 for the stuff, and he turned to this other fellow and says, ‘ W ell, y ou b etter take it. ’ Q. Who did he tell that to ? - A. To this colored fellow— there was a colored man on the wagon with him. Q. Was there two of them? A. Yes, sir. Q. Did they both drive up there together? A. Yes, sir. Q. Well, did you buy that stuff? A. Yes, sir. Q. Who were you talking to — the white man or the negro? A. The white fellow was talking to me, but he said that the colored fellow owned the stuff. Q. And he said to the colored fellow ‘You’d better take it?’ A. Yes, sir. Q. Did you inquire what their names were? A. Yes, sir; I asked their name, and I think he said this colored fellow’s name was Penny, but I'don’t remember now what the other fellow’s name was. Q. Did you ask him anything about where he lived? A. Yes, sir. Q. What was his reply? A. He said he lived near the planing mill. Q. Did you ask him where he got this stuff? A. Yes, sir. Q. What did he say? A. He said he bought them from a fellow that was repairing a house and using new fixtures and heavier fixtures. Q. You say you finally bought that stuff? A. Yes, sir. Q. Where did you get the money? A. I had $20 and borrowed $15 from Tom Stapp. Q. What did you do with that stuff after you bought it? A. Piled it right there on the outside of the house, and that evening when we got ready to quit we piled it in the house. Q. Was there any effort made to conceal it, or anything of that kind? -A. No, sir. Q. When was that with reference to the time that Creed and these other gentlemen came over there? A. About two days later. Q. You mean they came about two days later — two days subsequent to the time you bought the stuff? A. Yes, sir. Q. Do you remember the conversation that you had with Mr. Creed? A. Well, he asked me whose place that was and I told him it was mine, and he said something about where did you get your doors and windows, or something like that—
    ‘‘Mr. Ray: Speak up louder.
    ‘‘He asked where I got my doors and windows, so I didn’t know who those fellows were that were with him, just knew Creed, and he didn’t explain his business, and I just told him I had had them a long time, and he said, ‘Can you tell rue where you got them/ and I still told him I had had them for a long time, and he said, ‘I will have to arrest you/ and I said, ‘All right.’ Q. Do you remember whether you stated, ‘I had them’ or ‘I have had them a long time?’ A. I believe I stated ‘I have had them a long time/ or something like that, I don’t remember exactly — I would not be positive about that.”
    On cross-examination defendant testified in part as follows:
    “Did you have any horses and wagons? A. Yes, sir. Q. Where is this farm that you own located? A. About 12 or 15 miles out in Osage. Q. That is where those windows and things that you say you owned were? A. Yes, sir. Q. How do you get from Bartlesville out to your farm — did you have a car? A. No, sir. Q. How did you travel? A. We generally rode horses, or come over to O’Keefe and came in on the train. Q. You were back and forth to your farm two or three times a week, were you? A. Not at this present time I was building that house; I had been in here probably for a month at that time. Q. And hadn’t been back to that farm? A. Yes, sir; I had been back. Q. How long before the 16th of July, 1920? A. I don’t exactly remember. Q. A short time? A. Yes, sir. Q. Do you mean to tell this jury that you had all of those doors, screens, and windows at your place— down at your farm, already torn down, and you had wagons and horses there, and still you would pay $35 to keep from hauling them 12 or 15 miles? A. Yes, sir. Q. What was the name of this white man that you say was with the negro from whom you bought that stuff? A. It was a funny name— I don’t remember now. Q. What was the negro’s name? A. Penny, I believe — Penny was the negro’s name, as well as I remember. * * # Q. And he told you what? A. He told me he bought it at a bargain south of town from some fellows who were repairing a house — some men out in the country south of town. Q. He said he had bought it from some man out in the country, south of town? A. Yes, sir. Q. Did he say who it was? A. No, sir. Q. Did you ask him who the man was that he claimed to have bought this property from? A. No, sir. Q. Why didn’t you? A. I don’t know. Q. But you tried to find out if he was the rightful owner of it? A. Yes, sir. Q. But you didn’t ask who he got the stuff: from— who he bought it from? A. No, sir. Q. You didn’t ask him how far south of town the party lived from whom he bought it either, did you? A. No, sir. * * * Q. You made an affidavit in this ease last October, didn’t you? A. Yes, sir. Q. Didn’t you swear in that affidavit that it was on the 15th day of July, 1920, that this white man and negro came to your place and sold you this stuff? A. I believe I did. Q. Well, did you? A. Yes, sir. * * * Q. Then it was on the 15th day of July, 1920, that you bought that stuff? A. I believe it was; I don’t exactly remember the date now. Q. But that is the date on there, and that is the date — well, you see it says it was on the 15th day of July, 1920, that they came to your place? A. Yes, sir. Q. And that is right? A. Yes, sir. Q. That is the date that you bought those things? A. Yes, sir.”
    Tom Stapp, a witness for the defendant, testified that he had been assisting defendant in constructing the house and that defendant had bought the doors, windows and screens, and in this connection testified as follows:
    “How did Buford come, to buy that stuff? A. Well, we were working there, and he had to have some doors, and he had been telling me all the time that he had some back at his brother’s on the farm, and we were just working along there, and those two fellows drove up in a one-horse wagon and hollered, and Cicero and Joe went out there, and pretty soon he called me out there and asked me what I thought about that stuff, and I asked him the price and he said $40, and we talked on a little about it being pretty good stuff, and Cicero said he didn’t have enough money to buy it, and finally this fellow said he would take $35 for it, so he had $20 of his own, and I loaned him the $15, and he bought it. Q. Was there any time during that conversation there that you heard the names of those parties from whom Cicero got this stuff? A. Well, Joe asked him the names, but I don’t remember now what they said they was. * * * Q. Do you remember what date Buford bought this stuff? A. No, sir. Q. Do you know about how long it was before he was arrested? A. I believe he bought it on Saturday, and on the following Monday he was arrested.”
    On cross-examination the witness testified in part as follows:
    “Q. You and Cicero are pretty good friends, are you? A. Yes, sir. Q. What kind of looking white man was that? A. I don’t remember. Q. Was he a big or a little man? A. A pretty good sized man. Q. Can you tell how he was dressed? A. No, sir. Q. What kind of a negro? A. Just a black negro.”
    C. E. Buford, a witness for the defendant, testified in part as follows:
    “That he is a brother of the defendant and lived about 12 miles southeast of Bartlesville; that he remembered of the arrest of Cicero Buford on this charge; that he and Cicero had some doors and sash out at his place at the time Cicero was arrested; that when they sold the home place they had some buildings out there that were tom down, and they had been hauling the doors, etc., around to keep from thowing them away, and had stored it on the farm; that this property belonging to Cicero as much as it did to anybody else.”
    Rebuttal.
    Clyde Ealdn was called in rebuttal by the state and testified that the defendant did not tell Mr. Creed in the conversation just before he was arrested that “if you will give me time, I will go with you and show you where I got those things.”
    George, Campbell & Ray, for plaintiff in error.
    George F. Short, Atty. Gen., and Baxter Taylor, Asst. Atty. Gen., for the State.
   MATSON, P. J.

(after stating the facts as above). The sole assignment of error is that the evidence is insufficient to sustain the verdict and judgment. For such reason we have considered it advisable to quote copiously from the testimony given by the witnesses for both the state and the defendant.

Counsel for defendant contend that the circumstances of recent possession, coupled with an untruthful statement or an evasive statement by defendant of the length of time he had been in possession of the stolen property, should not have resulted in his conviction.

We believe counsel overlooked other incriminating circumstances which the jury doubtless considered in reaching a verdict of guilty in this ■ case. Here we have, according to the state’s evidence, not only undisputed proof of the corpus delicti of the larceny, coupled with proof of possession by defendant of the stolen property two days after the larceny thereof, and an admitted untruthful statement by defendant at the time he was first found in possession thereof, but also the circumstances that at the time defendant asked for a continuance of the trial he made an affidavit that he came into possession of this property on a date prior to the time it was stolen, and again as a witness in the trial he swore to matters that were contradictory both of his affidavit for a continuance and to his statement made at the time he was first found in possession of the stolen property.

We have here, then, three distinct statements by defendant, two of them under oath, and each contradictory of the other, in explanation of his possession of this stolen property. The last explanation, given at the trial, is unreasonable and apparently unbelievable. The property stolen was not such as passes readily from hand to hand. It was not such as a person would likely steal unless he had beforehand located a market for it or had a particular use to which it could quickly be put.

Here defendant was building a house; he needed just two doors and five windows and screens. Just at the appropriate time, a negro and a white man in a spring wagon made a convenient appearance hauling just two doors and five windows and screens. Defendant says he bought these windows and doors and screens from the negro for $35, a little more than half of their actual value. Defendant did not learn the true names of and could not afterwards locate either of these parties, although the case was not tried for several months. Defendant says this negro told him he had bought this property at a bargain from some parties south of Bartlesville who were remodeling their property by putting in heavier fixtures, yet defendant admits he made no effort to learn the names of such parties or to verify the truthfulness of the negro’s statement.

The onus of proving the truth of his explanation is upon the party in whose possession stolen property is found, when found under such circumstances as to call for an explanation, and the explanation given is not natural and probable and not such as all reasonable minds would not differ on. Garcia v. State, 26 Okla. 209, 82 Am. Dec. 605.

Where the explanation of possession, however, is natural and probable, and satisfactorily accounts for the possession of the stolen property in such a way that all reasonable minds would arrive at the truthfulness of the explanation, then the court may as a matter of law determine the issue; otherwise this court would clearly be invading the province of the jury and would be passing upon the weight to be given to the testimony of the accused and his witnesses respecting the explanation, although the jury had seen and heard them testify and the court had not.

While it may be possible that a jury may err with regard to both the reasonableness and truthfulness of an explanation, yet such an error is possible with regard to any inculpatory fact which the jury must find from the evidence in order to convict the accused.

The question here is, Is there any substantial evidence to support the findings of the jury? Without doubt there is.

The judgment is affirmed.

BESSEY and DOYLE, JJ,, concur.


text:
    J. H. BESHEARS, Sr., et al. v. STATE.
    No. A-4239.
    Opinion Filed May 10, 1924.
    (225 Pac. 723.)
    (Syllabus.)
    1. Appeal and Error — Conviction Supported by Testimony of Accomplice not Disturbed. The testimony of the accomplice was sufficiently corroborated, making it improper for this court to pass upon the weight of the evidence.
    2. Intoxicating Liquors — Modification of Sentence. The fact that the jury believed that the defendants, two white men, had entered into a partnership with a negro to manufacture whisky, may have caused a prejudice against the accused, as indicated by the severe penalty imposed. This and other circumstances shown justify a modification of the judgment.
    Appeal from County Court, Seminole County; B. F. Davis, Judge.
    J. H. Beshears, Sr., and Otho Jones were convicted of illegally manufacturing whisky, and each sentenced to confinement in the county jail for a period of six months and to pay a fine of $500, and they appeal.
    Modified and affirmed.
    6. Arthur Holloway, W. C. Hall, and H. W. Carver, for plaintiffs in error.

      The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

Ben Jeter, a negro, the chief witness for the state, testified, in substance, that plaintiffs in error, here referred to as the defendants, two white men, with Jeter’s consent, brought to Jeter’s house in July 1921, a whisky-still, worm, and other appliances, concealed under a load of oats; that this still was set up and put in operation in a storm cellar adjacent to Jeter’s house, where whisky had recently been manufactured, when the officers discovered and seized the still, whisky, and mash and placed Jeter under arrest. Jeter pleaded guilty, and claimed that he permitted the defendants to make whisky at his place, in return for which privilege he was to receive and did receive a part of the manufactured product. At the time of the trial of these defendants Jeter was serving his sentence in jail. The testimony of Jeter, who was an admitted accomplice with the defendants, was in part corroborated by Belle Jeter, his wife, and Anna Jeter, his daughter.

Each of the defendants took the stand and denied that he had anything to do with the still or the manufacturing of whisky. Two witnesses for the defendants testified that they heard Jeter make a statement at the jail that he believed that the defendants were responsible for turning him in to the authorities, and that he intended to make it hard for them. Defendants admitted that they were on Jeter’s premises at different times during the summer, but explained their presence there as being for the transaction of legitimate business.

Defendants claim that they were convicted upon perjured testimony and that the severity of the punishment was due to passion and prejudice of the jury, probably because the jury believed that these two white men had entered into a partnership with a negro to manufacture whis-ky. It appears that defendant Otho Jones had once before been adjudged guilty of the illegal possession of liquor, and paid a fine in the federal court; that the other defendant, Beshears, had been tried and acquitted a day or two previous for making whisky at another time on this negro’s premises.

The positive testimony of the accomplice Jeter indicative of the defendants’ guilt was sufficiently corroborated by his wife and daughter, so that it would be improper for this court to pass upon the weight of the evidence and' declare in effect that the testimony supporting the verdict was untrue. It appears that these defendants were farmers, who themselves raised the issue and proved that they had never before been convicted of manufacturing whisky or selling it. Bach of them testified that he had never at any time been engaged in the manufacture or sale of liquor.

Considering all the circumstances in the case this court has come to the conclusion that the sentence as to each of the ■ defendants should be modified to confinement in the county jail for a period of 60 days and to pay a fine of $200. 'The judgment as so modified is affirmed.

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