author: BAREFOOT, J.

text:
    CLAUD CRAIN v. STATE.
    No. A-9632.
    July 3, 1940.
    (104 P. 2d 450.)

      J. J. Smith and H. P. Walker, both of Miami, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Wm. T. Poteet, Co. Atty., of Miami, for the State.
   BAREFOOT, J.

The defendant, Claud Crain, was charged in the district court of Ottawa county with the crime of larceny of domestic animals; was tried, convicted, and his punishment assessed by the jury at ten years in the penitentiary. From this judgment and sentence he has appealed.

For reversal of this case defendant contends:

First. The matter of limitations.

Second. The lack of corroborative evidence.

Third. The manifest bias of the jury.

Fourth. Instructions refused.

The first question requires a statement of the history of this case. The defendant, Claud Crain, Fred Rosenthal, Ora Cox, and Paul McHorney, were all residents of the State of Missouri. The evidence revealed that on the night of September 12, 1934, they came from Missouri to Ottawa county, Okla. and entered the pasture of Henry Byard, and stole therefrom four mules, the personal property of the said Henry Byard. After loading the mules into a truck belonging to Fred Rosenthal they started to St. Louis, Mo., where the mules were to be disposed of. After crossing the Oklahoma line the truck turned over, but a wrecker was secured, and the next night they proceeded on their way. Fred Rosenthal, Ora Cox and Paul McHorney, were apprehended by the officers of the Highway Patrol, near Springfield, Mo., who had been notified of the theft. They were returned to Ottawa county, Okla., by the sheriff of that county, who went to Springfield, Mo., for them. The mules were recovered.

On the 13th day of September, 1934, a complaint was filed in the office of John H. Venable, county judge of Ottawa county, sitting as an examining magistrate, against “Fred Rosenthal?, John Doe, Richard D;oe, and Richard Roe”, whose true names were unknown, and a warrant Avas issued thereon and placed in the hands of Dee T. Watters, sheriff of Ottawa county. On September 24, 1934, as shown by the transcript of the examining magistrate, “the sheriff of Ottawa county, State of Oklahoma, brings Fred Rosenthal?, John Doe and Richard Roe * * * and thereupon Fred Rosenthal? informed the court that his true name is Fred Rosenthal, and John Doe says his true name is Paul McHprney, and Richard Roe says his true name is Ora Cox”. The transcript then recites, “and Richard Doe says his true name is Claud Crain”. However, it is after-wards admitted that this last statement is incorrect, and that the defendant, Claud Crain, had at that time not been apprehended, and was not present, and never appeared in the courts of Ottawa county until the 29th day of August, 1938. The transcript further recites:

“It is therefore ordered that the county attorney amend the complaint to show the correct and true names of the defendants, and it is further ordered that the prosecution proceed under the true names of the defendants.”

The record then reveals that the defendants, Fred Rosenthal, Paul McHomey, and Ora Cox, waived preliminary examination and were bound over to the district court of Ottawa county. Each of these three defendants was afterwards sentenced to the penitentiary and served this sentence upon the above charges.

During the month of August, 1938’, the defendant, Claud Crain, was apprehended and arrested in the State of California. He was returned to the State of Oklahoma by the sheriff of Ottawa county, Walter L. Young. On the 29th day of August, 1938, the county attorney of Ottawa county filed an amended complaint before John H. Yen-able, county judge, of Ottawa county, sitting as an examining magistrate, charging the defendant, Claud Crain, with the larceny of the four mules as above described, on the 12th day of September, 1934. A warrant of arrest was issued on this amended complaint and placed in the hands of the sheriff of Ottawa county. The transcript of the examining magistrate reveals that defendant was brought before him after the original complaint was amended as aforesaid, and that after having a preliminary examination on the 8th day of September, 1938, defendant was held for his appearance in the district court, and afterwards an information was filed in the district court, and defendant was tried and convicted, as heretofore stated. It may be here noted that the record revealed that Fred Rosenthal, at the time of his arraignment before the county judge in September, 1934, informed him of the true name of the defendant, Claud Crain, and that his true name did not appear in the records of this case until the amended complaint was filed on the 29th day of August, 1938, as aforesaid.

Under the above facts it is contended by defendant that he was not charged within three years, and that his prosecution is therefore barred by the statute of limitations. It is provided by Oklahoma Statutes 1931, sections 2724, 2725, and 2726; O. S. A., title 22, secs. 151, 152, and 153, as follows:

“There is no limitation of time within which a prosecution for murder, the embezzlement of public moneys, and the falsification of public records must be commenced. Prosecution for murder may be commenced at any time after the death of the person killed, and for the embezzlement of public money on tbe falsification of public records, at any time after the discovery of the crime.”
“In all other cases a prosecution for a public offense must be commenced within three years after its commission.”
“If when the offense is committed the defendant be out of the state, the prosecution may be commenced within the term herein limited after his coming within the state, and no' time during which the defendant is not an inhabitant of or usually resident Avithin the state, is part of the limitation.”

It is contended by defendant that the last section of the statute only applies to a person who is out of the state at the time of the commission of the offense, and does not apply to' one who' was within the state at the time of the commission thereof. This contention is based upon the case of State v. Clemens, 40 Mont. 567, 107 P. 896. The Supreme Court of Montana had before it a statute almost identical with the Oklahoma statute above quoted. This case was a misdemeanor, and we have carefully read it, and cannot approve of the reasoning of the court, and the construction placed upon the statute therein. It is in direct conflict Avith the construction placed upon the Oklahoma statute by the Territorial Supreme Court in the case of Coleman v. Territory, 5 Okla. 201, 47 P. 1079, 1080. In this case Judge Tarsney analyzed this statute, and held that the first part of the statute referred to persons, who, “being without the territory”, and that the second part of the statute referred to persons who were within the state at the date of the commission of the offense, but AvhO' were not inhabitants of, or usually residents within the state, during the time of the running of the statute of limitations. The court said:

“The evident intention of this statute was that as to persons who, being without the territory, should, by means or agencies within the territory, or by aiding and abetting others who were in the territory, commit any crime, the statute of limitations should not run until such person came within the territory. And as to all persons committing offenses, whether being at the time of the commission thereof within or without the territory, the statute of limitations should not run during the time when such offenders were not inhabitants of, or usually resident within, the territory; and if the defendant in this case was not, during the three years succeeding the offense charged, an inhabitant of, or usually resident within, the territory, the statute did not run as to him. On the other hand, if during said time he was an inhabitant of, or usually resident within, the territory, the statute did run, and he could not now lawfully be convicted of the offense charged. * * *
“Within the meaning of these authorities, the plaintiff in error must have had an actual fixed and permanent abode within the territory, or the statute of limitation did not- run as to any offense committed by him. Independent of the authorities, the fair, reasonable construction of the statute itself would indicate that it was the intention of the Legislature that the defendant should have had within the territory a fixed, permanent, and established home, where his, personal presence might reasonably be known. The Legislature, in the first part of the section, excepting from the operation of the statute of limitations, carefully provided that such limitation should not run as to- one who- was not within the jurisdiction of the territory, and, in the latter part of said section, excluded from its operation those who were not inhabitants or usually resident in the territory. They certainly did not intend to extend its grace and exemptions to those who- were within the territory, and who- were concealed, or whose presence therein might not readily be known; and hence we think that the Legislature meant such inhabitancy and residence, open, permanent, and known, as evidences the presence within the territory of those citizens who fear no- accusation of crime and seek no concealment.”

In that case there was a question of fact as to whether the defendant resided in this state, or was present in the state after the commission of the offense. This question was by the instructions of the court submitted to the jury. In the instant case the defendant never at any time resided in this state. The testimony offered by defendant himself, and among whom were members of his own family, showed that he was a resident of Missouri in 1934, and that after-wards he was a resident of the state of California, where he was at the time of his arrest.

To construe the statute above quoted as contended, by defendant, one who was a nonresident of this state, and who' came here and committed a crime, and so concealed himself until the statute of limitations run, could not be charged with the crime. We cannot place such construction on this statute.

In the case of State v. Fulkerson, 16 Okla. Cr. 250, 182 P. 725, 729, cited by defendant, it will be noted that the court said:

“It must be fully understood that the decision in this case has no bearing whatever upon the commencement of prosecutions for crimes committed on and after the date of the taking effect of Revised Laws 1910.”

In the case of Jarrett v. State, 49 Okla. Cr. 162, 292 P. 888, 889, this court has in a very similar case to the one at bar held as follows :

“A prosecution within the meaning of sections 2441 and 2442, Comp. St. 1921, 22 Okla. St. Ann. §§ 151, 152, is ‘commenced’ at the time the preliminary complaint or information is filed with a magistrate in good faith and a warrant issued thereon. It is not essential that the warrant shall be served in order that the prosecution be commenced.
“When a prosecution for a public offense has been commenced by filing a preliminary complaint or information in good faith and a warrant is issued thereon, but the accused does not come into the custody of the state until after the expiration of the three year period, the state may proceed on the original preliminary complaint or may file another charging the identical offense.”

In this case the court refers to the case of Ex parte Broadhead, 74 Kan. 401, 86 P. 458, cited by defendant, and says:

“In that case, however, the sheriff there knew where the defendant was but, on direction of the county attorney, returned the warrant ‘not found.’ The Kansas court holds this is an abandonment of the prosecution. The Broadhead Case is modified by the later case of State v. White, 76 Kan. 654, 92 P. 829, 14 L.R.A. (N.S.) 556.”

It also refers to the case of Davenport v. State, 20 Okla. Cr. 253, 202 P. 18, decided by this court, and especially with reference to that portion of the opinion that held that there must be a “continuous following up, through instrumentalities created by law, of a person accused of a public offense with a steady and fixed purpose of reaching a judicial determination of the guilt or innocence of the accused”. And the manner of following, up as announced in that case was contrary to the general rule, citing 8 B.C.L., sec. 111; 16 C.J. sec. 355; State v. White, supra; State v. Disbrow, 130 Iowa, 19, 106 N.W. 263, 8 Ann.Cas. 190.

The court then says:

“If the rule here contended for is sound, then an offender for any crime less than murder, if he can successfully conceal himself and avoid arrest for three years, is free from prosecution. The officers of the state may be ever so diligent in attempting to serve the warrant of arrest, but if the offender outwit them no prosecution will lie. When the action was commenced in September, 1924, by filing a preliminary complaint with the county judge, and the issuing the warrant thereon in good faith, the fact that the sheriff was unable to find defendant to- serve the warrant does not make the commencement of the prosecution any less a fact. When defendant came into the custody of the state fon prosecution for the offense charged in Kay county, the state might have proceeded with the original preliminary complaint, or it might have filed another preliminary complaint with the county judge so long as the offense charged is identical”.

See, also, Hicks v. State, 54 Okla. Cr. 431, 23 P.2d 219; Davenport v. State, 20 Okla. Cr. 253, 202 P. 18.

It is next contended that the state relied for a conviction upon the testimony of Fred Rosenthal, who- according to his own testimony was and is an accomplice, and that his evidence was not corroborated. The record, in addition to what has heretofore been stated, revealed that the sheriff of Ottawa county, and the county attorney, after the defendant had been brought back from California, Avent to Iowa and made arrangements for the witness, Fred Rosenthal, to- come to Ottawa county and testify at the preliminary hearing of the defendant. It may be gathered from the record that the witness had a case pending against him in Delaware county and that the county attorney agreed to- look into his case in Delaware county, and probably render him assistance in that county looking to the dismissal of his case. HoAvever, the witness testified that he returned and testified voluntarily, his expenses being paid by Ottawa county. He remained in jail in Ottawa county during the time he was there. His evidence was that the defendant Claud Crain was the master mind in the stealing of mules and horses, and carrying them to St. Louis for sale. That he owned a truck, and hauled them, but that the defendant located them, and made the arrangements for sale and disposed of them in St. Louis. He testified to several occasions when mules and horses were stolen in Missouri and Oklahoma under these conditions. He testified that defendant was present when the mules were stolen in Ottawa county in the instant case. That he helped locate the mules in Mr. Byard’s pasture and helped load them. That he was driving a black Chevrolet coupe. That he was present when the truck turned over, and that the defendant went to Miami and secured a wrecker to fix the car, and that defendant drove ahead of the truck after they left Springfield, Mo., and that when they were apprehended defendant disappeared, and he had not seen him until the time of the preliminary examination.

The contention of the defendant is that his evidence is not corroborated. This question has been before this court on many occasions. It is not necessary to' here cite those cases. In the case of Wilkins v. State, 70 Okla. Cr. 1, 104 P.2d 289, we cite many of the late cases bearing upon this question, and the rule of law which has been followed in this state, as follows:

“ ‘It is not essential that the corroborating evidence shall cover every material point testified to by the accomplice, or be sufficient alone to warrant a verdict of guilty. If the accomplice is corroborated as to some material fact or facts by independent evidence tending to connect the defendant with the commission of the crime, the jury may from that infer that he speaks the truth as to all. Such corroborating evidence, however, must show more than the mere commission of the offense or the circumstances thereof.’

“Also, in the Howerton Case [Howerton v. State, 65 Okla. Cr. 457, 88 P.2d 904], after citing the cases that have held the evidence sufficient and insufficient to corroborate the accomplice, we say (88 P.2d 905) :

“ ‘Prom these different cases it may be determined that in accordance with certain well defined propositions of law stated in the different opinions, that each case stands or falls on the particular testimony of that case.’ ”

Applying the rule above announced to the facts in this case, it may be stated that the evidence of four witnesses, together with the circumstances in the case, are relied upon by the state to furnish the corroborating evidence.

Dee T. Watters, who was sheriff olf Ottawa county in 1984, testified that he talked with Fred Rosenthal, Paul McHorney, and Ora Cox, after their arrest in 1934, and that each of them told him that Claud Crain, the defendant, would get the stock spotted, and that defendant would take the boys where the stock was and let them out, and they would round them up while Mr. Crain would watch.

Ed Grigsby was an automobile mechanic. He testified that a man came and employed him on the night of September 12,1934, to repair a truck that had been turned over on the road between Miami and Joplin, at a point near Devil’s Promenade; that it was a red Dodge truck with a regular stock body on it; that when he got there two men were there. One that had come after him in a black Chevrolet 1934 coupe and another person. He could not recognize either the defendant or the witness Fred Rosenthal as being these parties. But his evidence corroborated the evidence of the witness Fred Rosenthal, who testified that he and defendant were present, and that defendant went after the man who came to right the truck and put the five quarts of oil in the same, and that he followed this party out there and he was driving a black Chevrolet coupe. The evidence of Paul McHorney, who testified for the defendant, was that neither he nor Ora Cox was present when the truck was being righted, but that they were attending to the hiding of the mules. This evidence clearly corroborates the evidence of the witness Fred Rosenthal.

The other two witnesses, Sheriff Walter L. Young and O. L. Harrah, who went to California, in August, 1938, to return the defendant to Oklahoma, testified that during the trip back to Oklahoma he had a conversation with defendant as follows:

“He told me he didn’t have a thing in the world to' do with the stealing of the mules, and didn’t know a thing about the stealing of the mules. The only thing he said he got was a cut on the other end of the line. * * * I think he told me he bought two' tires for the truck, either the evening before this happened, or the next morning. I am not positive about that”.

Also:

“A. Well, we were talking about the truck they had been hauling the mules in, and Mr. Grain told me he paid for the wrecker to go out. I think he first went to Commerce and couldn’t get a wrecker and then came back to Miami and got a wrecker here. Q. Tell how much he paid? A. I understood the boy to say he paid $15. And he said he paid him $21. Paid him $20 and bought a dollar’s worth of oil”.

The witness O. L. Harrah testified that after they left Los Angeles he heard the defendant make a statement very similar to the one above stated.

We find that the above evidence, under the rule of law heretofore announced, was sufficient corroboration of the witness Fred Bosenthal.

The defendant did not take the witness stand in his own behalf. He introduced a number of witnesses, including a number of members of his family, who testified to his living in Missouri on the Eance farm during the year 1934. To his not going to the city of Springfield during that year, and to his not owning or having the use of a car. He also produced the accomplice, Paul McHomey, who testified he did not know him, and that defendant was not present at tbe time the mules were stolen. He also' testified to having served two terms in the penitentiary and one term in a reform school. This presented a question for the jury to decide under all the facts and circumstances. These issues were clearly presented to the jury, who saw the witnesses upon the stand, observed their demeanor, and were in a much better position to judge the truth of their testimony than is the appellate court. The issues were fairly presented by the trial court, and under the circumstances their verdict of guilty will not be set aside.

The question of the bias of the jury, as contended by the defendant, is by reason of the fact that the witness Henry Byard had been selected on the panel of jurors at the term at which defendant was tried, and had been associated Avith the jury panel in the trial of cases prior to the trial of defendant’s case, and that when this case was called for trial the court said: “Mr. Byard, you will retire from the place reserved for jurors.”

No evidence was offered by defendant to sustain the motion for continuance. Nothing was shown that any member of the jury panel Avere biased or prejudiced against the defendant or that they could not give him a fair and impartial trial. Under the facts presented we find no error in the court overruling the motion for continuance filed herein.

It is next contended that the court erred in refusing to give two- requested instructions; the first of Avhich was for the court to' direct a verdict of not guilty. From what has been heretofore stated there was no error in refusing this request.

The second requested instruction was to the effect that before the defendant could be convicted the evidence of the Avitness Fred Rosenthal “must be corroborated by other testimony on every material point in the case”. As heretofore noted, this is not the law in this state. It is further contended that the court erred in not giving an instruction upon circumstantial evidence. The facts in this case show that the state did not rely wholly upon circumstantial evidence for a conviction. We have often held that where the state did n*ot rely wholly upon circumstantial evidence it was not error for the court to fail tO' instruct thereon. From an examination of the facts, and especially of the defense presented by defendant, it was unnecessary to instruct the jury upon the question of circumstantial evidence.

The court instructed the jury as a matter of law that the witness Fred Rosenthal was an accomplice, and that it was necessary that his evidence be corroborated in a manner necessary to connect the defendant with the commission of the offense, and that the corroboration was not sufficient if it merely -showed the commission of the offense, or the circumstances thereof. This was proper. The instructions fully presented the laiv of the case and were as fair to the defendant as could be expected under the facts.

In the instant case, we have held that the court did not err in overruling the motion for continuance filed in this case by reason of the fact that the prosecuting witness was a member of the jury panel, and had associated with the jury in the trial of cases for a week prior to the trial of defendant’s case.

The jury assessed the extreme penalty provided by the law. It is true that the facts revealed that this defendant was engaged in the horse and mule stealing business, and the jury may have been warranted in assessing the extreme punishment.

The record reveals that the witness Fred Rosenthal was given a term of five years in the penitentiary. It does not reveal the punishment that was given the other two parties, but they were not in the penitentiary at the time of this trial, having served their sentences.

Viewing this case from the principle of doing justice to the state and to the defendant, we have come to the conclusion that this judgment should be modified from ten years in the penitentiary to seven years. The district court did not have the authority to do this where the punishment had been assessed by the jury, but this court has that power, and we believe that the ends of justice demand this modification.

It is, therefore, ordered that the judgment and sentence of the district court of Ottawa county be modified from 10 years in the penitentiary t«o 7 years in the penitentiary, and as so modified is affirmed.

DOYLE, P. J., and JONES, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    J. J. NEECE v. STATE.
    No. A-9643.
    July 11, 1940.
    (104 P. 2d 568.)

      W. J. Peterson, E. M. Garter, and Joe S. Eaton, all of Okmulgee, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and L. A. Wallace, Go. Atty., of Okmulgee, for the State.
   BAREFOOT, J.

The defendant, J. J. Neece, was charged in the district court of Okmulgee county with the crime of murder; was tried, convicted of manslaughter in the first degree, and his punishment assessed by the jury at six j ears in the penitentiary, and he has appealed.

This case arises from the killing of the deceased, Woodrow Roberts, by the defendant, J. J Neece, upon the street or highway of the city of Henryetta, Okmulgee county, on the 15th day of October, 1938. Deceased was shot by defendant and died in the hospital at Henryetta on the 15th day of October, 1938.

In his petition in error defendant states 13 grounds Ifor which he asks a reversal of the case. In the brief filed only four of the errors are presented, and those only raise one question. That the verdict is not sustained by sufficient evidence, is contrary to law, and the court erred in overruling' defendant’s demurrer to the evidence, and in refusing to- instruct the jury to return a verdict of not guilty.

The record reveals that the defendant at the time of his trial was 57 years of age. His wife, Gladys Neece, was 27 years of age. They had been married in Lamar, Mo., eight years before. They had moved to Henryetta, and had lived there since that time. About five years prior to the killing, the wife of the defendant had been a Pentacostal preacher, and had at different times conducted revival services. Three of these services were conducted at or near Quinton, in Pittsburg county. The first of these services was in June or July, 1938, and the last in August, 1938. At the first of these services she met the deceased, Woodrow Roberts, but this was only a casual meeting. The defendant was present at this meeting, but did not go with her when the meeting in August, 1938, was started. She was accompanied by a daughter whom they had adopted, named Helen Neece, and Pauline Johnson, a niece of the deceased, who had come to' live with defendant and his wife. They assisted in the revival. The evidence further revealed that deceased came to the room of Mrs. Neece after the services each night, and visited with her and his niece, and the adopted daughter. On one occasion the defendant came to Quinton and found the deceased and his wife and and his niece, Pauline Johnson, all lying on the bed late at night, and deceased got up and left, but it was denied that any improper relations were ever had between deceased and defendant’s wife. However, the evidence shows that the deceased and defendant’s wife were very much in love with each other, and this is admitted by her while testifying in this case, and by a letter introduced in evidence, and written by her to deceased just four days prior to the killing. The evidence reveals that she told defendant she was in love with deceased, and did not love him. The deceased asked her to secure a divorce from defendant so he could come to see her, and not be molested by defendant. She agreed to this, and talked it over with defendant, and he finally agreed that they would divide their property and he would sign a waiver and let her procure a divorce. The divorce petition was ¡filed on September 8,1938, and the divorce was granted on the 30th day of September, 1938. After this divorce was granted defendant and his wife resided at the same home, but occupied different rooms, and did not live as man and wife. Deceased Horn time to' time came to see her, and she would meet him at different places'. There were constant disturbances and talk, and some threats but no' actual combats, until deceased came from Quinton to Henryetta on Saturday the 15th day of October, 1938. Two of his friends had accompanied him to see the niece of deceased, Pauline Johnson, and Helen Neece, the adopted daughter. The defendant objected to this by reason of the age of the girls. The deceased on arriving at Henryetta wrote a note to Mrs. Neece, and asked her to meet him at a point on the railroad tracks, near her home. This she did about noon, and then returned to her home and after the noon meal she again met the deceased and they were together from about 1:30 to 5:30. They were seen together by defendant, who was nervous and somewhat excited. He had been to' his home two or three times and had forgotten what he had gone for. About 3:30 he went to his home and got a screwdriver for the purpose of fixing a sewing machine for another party. This was his business. He also upon this occasion placed in, his pocket a .32 pistol. He left home, and, as he testified, was going to the home of his sister, where he intended to stay all night. The deceased and Mrs. Neece had separated, and defendant in passing the streets came abruptly face to face with deceased, and it was at this time that the killing occurred.

The state introduced four eyewitnesses to the killing. They were C. E. Attiberry, Charley Hart, F. F. Whitaker, and Floyd Baxter. Each of these four witnesses saw the firing of the four shots. There were minor differences in the way each one saw it, but their evidence was substantially the same. Mr. Attiberry was about a half block distance from the scene of the difficulty. He saw both defendant and deceased standing up about two paces or six feet apart. The firing, of the gun first attracted his attention. After the first shot was fired the two men went together, and fell to the ground and two* more shots were fired. He was unable to state their exact position at the time the last two- shots were fired.

The witness Charley Hart was a high school boy 17 years of age. He lived near the scene of the difficulty, and was standing on his porch. When he first saw the defendant and deceased, “deceased was stooped over with his back toward Mr. Neece.” Two shots had been fired. And while Mr. Roberts had his back toward defendant the third shot was fired. They were about two feet apart. He went to the scene of the difficulty immediately afterwards.

The witnesses F. F. Whitaker and Floyd Baxter lived in Okmulgee, but were in an automobile coming from Hen-ryetta to' Okmulgee at the time of the difficulty. They witnessed the shooting from the car in which they were riding.

Mr. Whitaker testified as follows:

“Q. Now, when yon first saw them, just tell what was their positions with reference to each other? A. Well, I was passing by in a car and I wasn’t quite even with them, going slow behind a truck, and I was trying to make the comer and had practically stopped, and the first thing I saw that attracted my attention was Roberts fall and he fell forward on his hands. Q. Now do you know what caused him to fall? A. I do' not. Q. Which way did! he fall?- A. Well, you mean which direction? Q. Yes, sir. A. North and east I would say. Q. Did he fall toward the defendant or from the defendant? A. He fell from him. Q. Then what happened? A. Well, he jumped right back up. He never did fall clear down. He fell forward on his hands and he jumped back up and started to', I guess, started to grapple — Mr. Eaton: Object to' that. The Court: Sustained. A. He started toward Mr. Neece and Mr. Neece stepped back one or two steps and reached in here and grabbed a gun and started shooting. Q. And how far apart were they when the first shot was fired? A. About three feet. Q. And then how far apart were they when the second shot was fired? A. About the same distance. Q. And the third? A. The same distance. Q. What was the relative position of each of the parties to1 each other when the third shot was fired, were they facing or —Mr. Eaton: Never mind; he knows what relative means. A. I don’t believe I understood. You mean the position they were in when the third shot was fired? Q. Yes. A. When the third shot was fired, Roberts was on the ground. Let me get this straight. He fell after the third shot. He wasn’t on the ground when he shot him. Q. Well, you still haven’t answered my question about the relative position of the parties to each other when the third shot was fired? A. Neece was standing east of him when the third shot was fired. Q. Do you know which way Roberts was facing when the third shot was fired? A. I don’t know. Q. Do' you know where Roberts was shot? Do you remember or did you observe? A. Do I know where he was shot? Q. Yes, sir. A. Yes, sir. Q. Now what part of his body — Mr. Eaton: Object to that unless he saw it. A. I picked him up; I saw it. Q. All right. A. He was shot right here (indicating). Q. Turn around and let the jury see. A. He was shot right below the arm pit in the back. Q. Can you explain to the jury how he was shot back there; how he managed to shoot him in the back? Mr. Eaton: Now we object to' that; that is for the jury to say. The Court: Overruled. Mr. Eaton: Exception. A. Well, Avhen the shooting started, Roberts was coming in to him when the first shot was fired and about the second time, the time the second shot was fired, he had spun around like he was trying to get away and when the third shot was fired — Neece wasn’t standing still himself; they were both moving around pretty fast — and when the third shot was ifired it looked to me like Roberts had his back to him; he was sideways to' him; he didn’t have his back to him; but he was sideways,.”

The evidence of the witness Baxter was substantially the same as that of the witness Whitaker. He testified they were about two feet apart, and that the deceased, Roberts, had his back or side towards the defendant when the last two shots were fired.

The evidence revealed the deceased was in his shirt sleeves at the time of the difficulty; was not wearing a hat, and was not armed in any way. That defendant had on his coat, and was wearing a hat, and had a .32 pistol. Immediately after the shooting the defendant left the scene of the difficulty, but was arrested by two officers in some weeds immediately thereafter. He had the gun in his pocket, and it had been fired three times.

The defendant placed upon the witness stand one eyewitness besides himself. This was J. B. Calhoun. He had been subpoenaed by the state, but was not used by them. He lived within a half block of the scene of the difficulty and witnessed it from near his home. He had been to the ice dock and was returning home. He first saw them standing facing each other. He looked back and they were in a tussle and fell to the ground, and deceased was on top. He said, “About the time they hit the ground there was a shot fired and they scuffled for only a second or two and there was another shot fired and the deceased kind of raised up and Neece started to get up from under him when the third shot was fired.” This witness was the first one to the deceased after the difficulty. He saw the witness Attiberry there. He testified the shirt of the deceased was on fire and that he put it out.

The defendant testified at length, going into detail as to the history of his life and the trouble he had with the deceased interfering with the home life of him and his wife. It is unnecessary to go into further detail with reference to this. He testified that he was attacked by the deceased when they met, and that he was in fear of his life when the shots were fired by him, which killed the deceased. His evidence of the position at the time that the shots were fired was similar bo the witness Calhoun. He testified that they were on the ground at the time the shots were fired, and explained that the shot in the deceased’s bach was by reason of his reaching around and firing the shot while in that position.

Defendant’s wife, Gladys Neece, was placed on the witness stand by the defendant, but enough has been stated of her testimony.

Many witnesses testified as to the good character of the defendant prior to- this difficulty.

This is, indeed, one of those unfortunate cases. As a matter of law, it is doubtful if, after the testimony of the defendant himself and the witness J. B. Calhoun, he was justified in taking the life of deceased. We have often held that the breaking up of the home of a person does not justify the taking of human life. Posey v. State, 50 Okla. Cr. 129, 296 P. 527; January v. State, 16 Okla. Cr. 166, 181 P. 514; Litchfield v. State, 8 Okla. Cr. 164, 126 P. 707, 45 L.R.A., N.S., 153; Nutt v. State, 8 Okla. Cr. 266, 128 P. 165.

The jury in this case evidently took into consideration all these facts and circumstances when they returned a verdict of manslaughter in the first degree and gave the defendant only six years in the penitentiary. Under the facts and the law, a judgment and sentence of murder would be upheld in this case.

There is no error in the record which justifies a reversal. The defendant had a fair and impartial trial. The instructions fully covered the law of the case and were fair to the defendant. The jury was lenient; and he has been ably defended in his trial and his appeal.

Finding no error, the judgment and sentence of the district court of Okmulgee county is affirmed.

DOYLE, P. J., and JONES, J. concur.


author: JONES, J.

text:
    O. L. CAMP v. STATE.
    No. A-9665.
    July 11, 1940.
    (104 P. 2d 572.)
    Mathers & Mathers, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, At-ty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant' in error.
   JONES, J.

The defendant O. L. Camp was charged by information in the district court of Oklahoma county on August 30, 1938, with the offense of receiving stolen property; was tried, convicted, and his punishment fixed at a fine of $200, and he has appealed to this court.

The state’s evidence, in substance, is that ion July 15, 3938, eight two-pound chickens, dressed and with the legs cut off below the knee joints, which were wrapped in white paper and put in a brown sack with “Dinette” written on it in red pencil, were taken from the delivery truck of the Walnut Street Produce Company. The driver of the truck later identified the chickens taken from the defendant’s wife as being the chickens that were stolen from his truck; but the chickens were in a different sack.

Officers McLennen and Acord saw Hershel Bowers, a narcotics addict who had served four penitentiary sentences for larceny, receiving, stolen property and forgery, and who was under observation by the police officers of Oklahoma City, go into the defendant’s place of business with a large bundle under his arm. Officers Harbolt and Butler joined McLennen and Acord and some 15 or 20 minutes later saw Mrs. Camp drive up in [front of the defendant’s shop. The defendant put in the car a package that looked similar to the one carried by Bowers. Harbolt and Butler followed the woman when she drove away; stopped her; asked permission to examine the package, to Avhich she consented, according to the testimony. The package contained eight two-pound chickens. Mrs. Camp was taken to the police station and detained for a time.

Butler and Tom Guest then went to the defendant’s store and asked defendant if he had bought any chickens that day, which defendant positively denied; however, he stated that a man (describing Bowers) had tried to' sell him some chickens.

Bowers, a narcotics addict and habitual thief, testified that he knew the chickens were stolen and told the defendant that they were when the defendant offered to buy them from him for $2.50. Bowers received only part of the $2.50 at that time. He was immediately arrested, fined, and confined in jail on a charge of receiving stolen goods. After he had served his jail term, he returned to the defendant to collect the rest of the $2.50. Defendant took him to' his attorney’s office. Bowers states that the defendant told his attorney that Bowers had made no statement and that the defendant could get a friend of his in the produce business to sign a ticket showing that he bought the chickens.

The defendant, who at the time had a case pending in this court for receiving stolen goods (Camp v. State, 66 Okla. Cr. 20, 89 P. 2d 378, affirmed) and had paid a fine for distributing obscene literature, testified that he went to the public market with his cousin, Bertha Hicks, bought the chickens, and had them dressed at the Standard. Bertha Hicks supported his testimony. O. B. Owens of the A & A Produce Company said that he made out the bill for the chickens the defendant bought on July 15,1938. Milton Byars, an employee of Owens, stated that he remembered the defendant buying the chickens that morning.

Mrs. Camp stated that she did not invite the officers to get into her car; made no statemeht as to whether or not she gave them permission to examine the package; but stated that they ordered her to drive to the police station.

Sam Massey testified that he worked in Camp’s store. He remembered that Camp went to. the market and brought back some chickens; that a man was in there trying to sell Camp some chickens; that Camp would not buy them.

The defendant’s chief contention is that the court erred in permitting certain police officers to testify as to their search of the automobile of the defendant’s wife and as to the chickens found therein, over the objection of the defendant, as the same was an unlawful search and seizure in violation of the constitutional rights of the defendant.

It is stated in Hargus v. State, 58 Okla. Cr. 301, 54 P. 2d 211, 212:

“For the purpose olf preserving the peace and to prevent crime, a peace officer or private citizen may make reasonable inquiry of persons coming under his observation or brought to his knowledge under circumstances which reasonably suggest that a crime has been or is about to be committed.”

Mrs. Camp had certainly come under the observation of the officers, and there was sufficient reason to believe that a crime had been or was about to be committed. The officers were justified in stopping her and making inquiries.

Officer Harbolt testified that Mrs. Camp gave him permission to examine the package. This testimony is un-contradicted.

It has been held in Hurst v. State, 25 Okla. Cr. 102, 219 P. 151, and in Gaines v. State, 28 Okla. Cr. 353, 230 P. 946, that the right to immunity from a search and seizure without a search warrant may be waived.

No unlawful search and seizure has been shown, and the testimony complained of was admissible.

There is a conflict in the testimony, but there is ample evidence in the record to sustain the conviction.

We have held: 279. Pickett v. State, 35 Okla. Cr. 60, 248 P. 352; Clemmer v. State, 56 Okla. Cr. 354, 40 P. 2d 37; Goodnight v. State, 62 Okla. Cr. 382, 71 P. 2d 789.

“Where the evidence and reasonable and logical inferences and deductions to be drawn from it are sufficient to convince the jury beyond a reasonable doubt of the guilt of the defendant, this court will not disturb the verdict for insufficiency.” Hensley v. State, 69 Okla. Cr. 199, 101 P. 2d

The other errors assigned to have been made by the court are without merit, and this cause is accordingly affirmed.

DOYLE, P. J., and BAREFOOT, J., concur.


author: J ONES, J.

text:
    EMIT GILES v. STATE.
    No. A-9654.
    July 17, 1940.
    (104 P. 2d 975.)

      John Steele Batson, of Marietta, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and W. J. Monroe, Cot Atty., of Marietta, for defendant in error.
   J ONES, J.

Tbe defendant Emit Giles was by information filed in the district court of Love county, Okla., on October 19, 1938, charged with the murder of one George Rose; was convicted and sentenced to a term of life imprisonment in the state penitentiary at McAlester, and appeals to this court.

The defendant, Emmit Giles, in August, 1938, lived on a ranch about four miles northeast of the town of Marietta in a three-room shack. He and his wife had divorced a few days before that time. The deceased, George Rose, was a neighbor who lived about one-quarter of a mile northeast oif the defendant. The wife of the deceased had died a few weeks before that time, and the wife of the defendant had been doing the washing for the deceased since his wife’s death. About August 7, 1938, the deceased was missed from his home. Later, on the 12th day of August, 1938, the sheriff, in company with several other persons including the defendant, found the deceased in a canyon about three-quarters of a mile northeast of the home of the deceased.

The proof showed that the defendant was jealous of the deceased over the attentions that he was paying to his wife and had made some threats towards deceased. On the day the body of deceased was found, the defendant endeavored to lead the sheriff and the posse in another direction away from where the body was hidden; and he made several contradictory statements concerning his relations with the deceased, which show evidence of guilt. The ballistics expert testified that a bullet fired from the defendant’s gun caused the death of the deceased.

It is not necessary to give a review of the testimony, as no question is raised in this case concerning the sufficiency of the evidence to' sustain the conviction.

The defendant, in his brief, urges three propositions for reversal of this case:

(1) Error of the trial court in failing to give an instruction on alibi.

(2) Error of the court in giving instruction No. 5.

(3) Actual bias of two of the jurors towards the defendant.

The first assignment is without merit. The deceased was not seen after the 7th day of August until his body was found on tbe 12th day of August. The testimony of the defendant that he was there in the vicinity every day from the 6th day of August to the time the body was found. The correct rule of law, as recently announced by this court in the case of Gregg v. State, 69 Okla. Cr. 103, 101 P. 2d 289, 290, is as follows:

“To entitle the defense of alibi to consideration, the evidence must he such as to show that at the very time of the commission of the crime charged the accused was at another place so far away or under such circumstances that he could not, with ordinary exertion, have reached the place where the crime was committed so as to have participated in the commission thereof; and, in a criminal prosecution, unless the evidence fills this requirement o!f the law, no instruction on the subject of alibi is necessary to he given by the trial court.” Barbe v. Territory, 16 Okla. 562, 86 P. 61.

In addition to' this, the contention of the defendant cannot be sustained for several reasons. The defendant did not request an instruction on alibi. He did not either in his motion for a new trial or in his petition in error before this court raise this question; and, therefore, since no such assignment of error appears in the petition in error attached to the case-made, the defendant cannot expect this court to consider this question when raised for the first time in his brief. Jordan v. State, 48 Okla. Cr. 137, 290 P. 340; Newman v. State, 44 Okla. Cr. 137, 279 P. 980; Morrison v. State, 7 Okla. Cr. 242, 123 P. 169.

The defendant next contends that the court erred in the giving of instruction No. 5, which said instruction reads as follows:

“In this case, gentlemen of the jury, you are instructed that if you shall find and believe from the evidence, facts and circumstances admitted for your consideration, and: beyond a reasonable doubt, that on or about the 7th day of August 1938, the defendant Emit Giles, did, unlawfully, willfully, wrongfully and feloniously, and without authority of law and with a premeditated design to effect the death of one George Rose, make an assault in and upon the said George Rose with a certain weapon, a pistol, loaded with powder and bullets, then and there had and held in the hands of the said Emit Giles, and did then and there fire, shoot and discharge the said firearm, revolver and weapon at, into and upon the body and person of the said George Rose, thereby inflicting certain mortal wounds so inflicted as aforesaid, the said George Rose did on the 7th day of August, 1938, die, and that said Emit Giles then and there intended to so kill and murder the said George Rose, then and in that event it will be your duty to convict the defendant, Emit Giles, of murder as charged in the information.
“On the other hand, if you fail to find that the defendant, Emit Giles, killed the deceased, as charged in the information, or if upon the whole case and these instructions you entertain a reasonable doubt thereof, it will be your duty to return a verdict of not guilty in this case.”

The defendant contends that the statement in the latter part of the instruction places the burden of prootf on the defendant to' prove his innocence and is an intimation by the court that he expects the jury to convict the defendant.

We cannot agree with this contention of the defendant. It might have been better form for the court to have couched the latter part of this instruction in different language from that with which it is written, but after a careful reading of the same, together with the other instructions which were given, we are unable to- see how this instruction has prejudiced the defendant. As was said by this court in the recent case of Wilkins v. State, 70 Okla. Cr. 1, 104 P. 2d 289:

“Instructions must always be considered with the evidence in the case, and when they contain no fundamental error nor any misstatement of the law which in the light of the evidence was calculated to mislead the jury to the injury of the defendant, and where the evidence clearly shows that the defendant is guilty, a conviction will not be reversed because the charge of the court may not be technically correct.” Ostendorf v. State, 8 Okla. Cr. 360, 128 P. 143; Greenwood v. State, 51 Okla. Cr. 74, 299 P. 248.

There is another reason why this contention of the defendant cannot be sustained. The record shows that no exceptions to any instructions were taken until after they had been read to the jury. As was stated by this court in the case of Stribbling v. State, 41 Okla. Cr. 252, 272 P. 488:

“By the fifth subdivision of section 2687, and section 2722, Comp. St. 1921, sec. 3057 O. S. 1931, 22 Okla. St. Ann. § 831, and sec. 3079 O. S. 1931, 22 Okla. St. Ann. § 856, it is contemplated that instructions to the jury in a. criminal case shall be settled before they are read to- the jury, so that counsel, if they have any exceptions to the instructions of the court or desire any additional instructions, may point out their objections to the court and may submit additional instructions in order that the court shall have an opportunity to correct any errors which he may have made. And also to give counsel for the state an opportunity to join in requesting the correction of any error in the instructions. Where no exceptions to the instructions are taken until after they are read to the jury, such exceptions will be unavailing unless the errors are of a fundamental character.”

Lastly, it is contended by the defendant that the court erred in not sustaining his motion for a new trial by reason of the actual bias of two of the jurors towards the defendant. In support of his motion for a new trial, the defendant introduced the evidence of certain witnesses that they had talked to' the juror J. T. Roberts on the day the jury was impaneled, in which conversation the juror stated that he thought the defendant should be sent to the penitentiary or the electric chair. The testimony concerning this conversation was contradicted by the juror and one other person.

The defendant in his motion for a new trial contended also that the juror Charlie McAnally was prejudiced towards the defendant; but no. proof was presented to the court to- sustain the allegation towards that juror.

The examination of the jurors on their voir dire is not included in the record, and this court cannot say what answers the jurors gave when examined as to their qualifications. As far as the record shows, no objection was made to the jurors or any one of them at the time they were called and examined as to their qualifications. The record fails to show that any of the jurors were questioned as to their bias or prejudice against the defendant.

In Horton v. State, 10 Okla. Cr. 294, 136 P. 177, this court held:

“Where a defendant accepts a juror without availing himself of the right to examine such juror on voir dire, or without availing himself of the right to challenge him for cause, he will not * * * be allowed to make the objection that the juror has formed and expressed an opinion adverse to him, as a ground for a new trial.”

This court follows this doctrine in the latter cases of Dixon v. State, 56 Okla. Cr. 454, 42 P. 2d 286, and Vanderslice v. State, 59 Okla. Cr. 192, 57 P. 2d 267.

In Smith v. State, 19 Okla. Cr. 14, 197 P. 514, in the first paragraph of the syllabus, this court said:

“Where a new trial is asked for upon the grounds that a juror who served upon the jury was prejudiced against the defendant, which prejudice was unknown to the defendant prior to rendition of the verdict, to entitle the defendant to a new trial, it must not only be shown that the said juror was prejudiced, but it must also appear that the defendant suffered an injustice by reason of the said juror having served upon the said jury.”

A motion for a new trial is addressed to the sound discretion of the trial court; and unless it affirmatively appears from the record that the trial court abused this discretion, a new trial will not be granted.

The evidence as to- the statement made by the juror the morning the jury was impaneled to- try the defendant is conflicting. As a general rule the findings of-the trial court upon an issue of fact, arising from evidence introduced on a motion for a new trial, will not be disturbed where there is any evidence reasonably tending to support such finding. There is ample evidence to support the finding of the trial judge that no actual bias of the juror is shown.

We have carefully examined the record in this case and all the assignments of error made by the defendant, and from the record it does not appear to- us that there has been a manifest abuse of discretion in overruling the defendant’s motion for a new trial. Under the evidence, no other verdict than the one given could reasonably have been expected.

There being no error in the record sufficient to- warrant a reversal, the judgment of the district court of Love county is accordingly affirmed.

DOYLE, P. J., and BABEFOOT, J., concur:


author: PER CURIAM.

text:
    Ex parte ROY WHITSON.
    No. A-9878.
    July 17, 1940.
    (104 P. 2d 981.)

      Roy Whitson, in pro. per.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for respondent.
   PER CURIAM.

Roy Whitson filed in this court by mail his petition for writ of habeas corpus, wherein he avers that he is unlawfully restrained of his liberty by J. P. Dunn, warden of the state penitentiary at McAles-ter, at the subprison in Stringtown without authority of law except commitment from a court in Tulsa county.

Petitioner avers that his conviction was without due process of law as provided in Amendment V of the Constitution of the United States, providing:

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury.” And further avers that his attorney failed to file an appeal from the judgment of conviction; that the county attorney of Tulsa county made remarks and comments about the petitioner calculated to inflame and prejudice the jury against him, “and as a consequence received a sentence twice as great as any ever assessed by the courts of the state for a similar crime.”

Petitioner fails to state the name of the court or the crime of which he was convicted or state the punishment imposed.

A general demurrer to the petition was interposed by counsel for the respondent.

It is elementary law that in habeas corpus proceedings jurisdictional questions only are reviewable or to be considered. The writ cannot be invoked, for the purpose of reviewing- the acts of courts of record, where they acted within their jurisdiction, nor for the purpose of correcting irregularities or errors, or as a substitute for an appeal.

Before the writ is available as a means of release from confinement, it must appear that the court issuing, the process has acted without jurisdiction.

It follows that the demurrer to the petition should be sustained and the cause dismissed. It is so> ordered.


author: DOYLE, P. J.

text:
    WILL SMITH v. STATE.
    No. A-9730.
    July 17, 1940.
    (104 P. 2d 1009.)
    David Tant, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DOYLE, P. J.

The information filed in the district court of Oklahoma county April. 2, 1938, in substance, charges that in. said county, on the 7th day of February, 1937, Will Smith did unlawfully, willfully, and feloniously commit the crime of disposing of mortgaged property, in that he did sell to the Norton-Johnson Buick Company a certain automobile, theretofore mortgaged to the R. F. Campbell Finance Company, for the sum of $225, said selling of said mortgaged automobile being without the knowledge or consent of the said mortgage holder, with the unlawful and felonious intent of said defendant to1 deprive the said mortgage holder of the security represented by the said mortgaged automobile.

The record shows that a jury was waived. On March 11, 1939, plaintiff in error was by the court sentenced to be imprisoned in the county jail for a period of 120 days, and that he pay the costs.

A new trial having been denied, he appealed from the judgment by filing in this court on September 11,1939, a petition in error with case-made attached.

No brief has been filed on his behalf and no appearance was made for oral argument when the cause was called for hearing and final submission.

The rule has long been established in this court that where the defendant appeals from a judgment of conviction and no brief is filed or oral argument made, this court will examine the record and the evidence, and if no error prejudicial to the substantial rights of the defendant is apparent, will affirm the judgment. Walker v. State, 60 Okla. Cr. 302, 303, 64 P. 2d 935; Owens v. State, 60 Okla. Cr. 324, 64 P. 2d 1234.

Upon a careful examination of the record, the court finds the information is sufficient, that the evidence was sufficient to support the conviction, and the record discloses no fundamental error.

It follows that the judgment should be and the same is hereby affirmed.

BAREFOOT and JONES, JJ., concur.


text:
    In re OPINION OF THE JUDGES. In re J. D. TUGGLE.
    No. A-9902.
    July 25, 1940.
    (104 P. 2d 726.)
   DOYLE, P. J.

It appears from the record submitted, that on May 17, 1940, a complaint was filed in the county court of Garvin county, charging J. D. Tuggle with the murder of one Sadie Jones, in said county on the 10th day of May; and on the same day the defendant, J. D. Tuggle, was by information filed in the district court of Garvin county, on May 17, 1940, charged with the murder of one Sadie Jones, alleged to have been committed in said county on the 10th day of May, 1940, by striking the said Sadie Jones with an axe handle, thereby inflicting mortal wounds, of which mortal wounds so inflicted said Sadie Jones did on said day die.

It also appears from the record that on May 20, 1940, a complaint was filed in the county court of Garvin county, charging J. D. Tuggle with the murder of one D. Wilburn Jones, in said county on the 10th day of May; on the same day said defendant, J. D. Tuggle, was, by information filed in the district court of said county, charged with the murder of one D. Wilburn Jones, alleged to have been committed in said county on the 10th day of May, 1940, by striking said D. Wilburn Jones with an ax handle, thereby inflicting certain mortal wounds of which wounds so inflicted said D. Wilburn Jones did on the 17th day of May, 1940, die.

It further appears from the record before us that on May 17th the defendant upon arraignment in the first case asked the court to appoint counsel to represent him, and tbe court appointed McCaughey, Ewart and Bowie as defense attorneys, and the case was continued until May 20th, at which time counsel appointed by the court to1 represent the defendant asked leave to withdraw, which was granted.

The defendant was then arraigned upon the second information, and the court stated:

“You are entitled in this case, as I explained to you in the other case the other day to- a lawyer at every stage of these proceedings. It was said then you were unable to hire a lawyer, you of course wanted the court to appoint you a lawyer.”

The defendant:

“Judge, I would like to ask the court a question, if possible. In the event that I would plead guilty to- both charges, will the court accept responsibility of sentencing me without the trial?”

Thereupon the defendant was fully advised by the court of his constitutional and statutory rights and the consequences of a plea of guilty, and concluded by stating:

“I will appoint another lawyer in this case if you want one.”

The defendant stated:

“In the event that I make by own plea here, when can I enter a plea in this other case?”

The court:

“You can — Time has been set at 2 o’clock this afternoon for your time to- plead in the other case. You can enter your plea in both cases now if you like.”

The defendant answered:

“I would like to enter a plea of guilty in both cases and I will accept the fate.”

Tbe court:

“You understand that in entering your plea of guilty in these cases that you are waiving your right to an attorney, do you?”
“You understand further that you are waiving your right in each case to a trial by jury?”

To which the defendant answered:

“Yes, however, your honor, I would like to say before the court or have the statement read before the court that I signed for the county attorney as a reason for this, and maybe that, even though I go to the electric chair, maybe this will prevent something of this kind from happening again. The Court: How old did you say you were? A. I am 21. Q. Are you an orphan boy? A. No, sir. Q. Where do your parents live? A. My mother lives in McAlester and my father over near Homer schoolhouse in Pontotoc county. Q. How long have they been separated? A. Ever since I was two- and a half years old. Q. By whom were you reared? A. By my mother and stepfather.”

His examination by the court concluded as follows:

“All of these things in view now, what is your idea with reference to the case that we now have up for consideration, do you still want to waive the appointment of a lawyer? A. Yes, sir. The Court: The information having been read to you, you are ready at this time tO' enter your plea or do you want to’ wait 24 hours? A. I am ready at this time. The Court: I have explained you have a right to a jury trial, if you plead not guilty. If you plead guilty, it will be the court’s duty to sentence you either to life imprisonment or to death in the electric chair. What is your plea? A. Guilty as charged. The Court: All right, I will accept your plea of guilty. Let me say just this. The time has passed now for you to1 enter your plea in the other case, and that is the case where I appointed Mr. Moody and Mr. Bowie.and Mr. Ewart to defend you. Don’t let the fact that these attorneys have withdrawn prejudice your mind with respect to the idea of whether or not this court will see that you get a fair trial.”

And continuing, repeated the advice given to' the defendant as to his constitutional and statutory rights, concluding as follows:

“Now with that statement in mind, will yon prefer that I appoint you other counsel or do you want to represent yourself? I am just trying to help you. The defendant: Yes, sir. I appreciate that, but I believe I would rather plead guilty to' both charges and waive everything. The Court: In the case wherein you are charged with the murder of Sadie Jones, you want to waive the right of appointment of an attorney? A. Yes, sir. Q. You have heretofore been given 24 hours time in which to plead, and you are now here for arraignment. At this time you may enter your plea of guilty or not guilty, in the light of the information and advice I have given you about your constitutional rights. If you plead guilty, it will be my duty to pass sentence on you, as I indicated a few minutes ago. If you plead not guilty, you will be entitled to a trial by jury and it will be my duty to see that you have a fair and impartial trial. Are you ready to enter your plea at this time? A. Yes, sir. Q. Is your plea guilty or not guilty? A. Guilty as charged. The Court: I will accept your plea of guilty. The Court: Do you know of any reason that sentence should not be passed upon you at this time? A. None, other than the fact that I would like a chance to, as I stated before, state a possible reason for this act of violence that I have committed. The Court: You want to1 do that before sentence is passed upon you? A. Yes, sir. If the court does not grant me that privilege, I am ready to receive my sentence. The Court: I am going to' grant your request. I will hear your statement.”

The transcript of the defendant’s statement covers 14 pages of the record.

We do not deem it necessary to enter into' the sordid and revolting details of the defendant’s confession and statement, aS' you will no> doubt acquaint yourself with the facts and circumstances of the commission of the murders charged.

Thereafter, on May 23rd, another hearing was had, at which time Sam J. -Goodwin, connty attorney, appeared for the state. The defendant, J. D. Toggle, appeared in person and by counsel, J. T. Blanton.

The defendant accepts the appointment of Mr. J. T. Blanton as his attorney, sentence day deferred until June 3, 1940. Thereafter, on June 3rd, the (following proceedings were had:

“The Court: Mr. Blanton, inasmuch as I have appointed you to represent Mr. Tuggle, I presume you will do the talking. Mr. Blanton: If the Court please, Mr. Tuggle has decided that he will still let his plea of guilty stand, notwithstanding the conversation I had with you. I just consulted him in the last few minutes and he stated that he would let his plea stand, that is, his plea of guilty. The -Court: Mr. Blanton told me this afternoon, Mr. Tuggle, that you had decided to withdraw your plea of guilty to the charge of murder in each case, 2265 and 2268, but here in open court just a minute ago you stated through your attorney that your present intention and desire is to allow your plea of guilty in each case to stand. Is that correct? The Defendant: Yes, sir. You are guilty? A. Yes, sir. Q.. Mr. Tuggle, do you know of any reason that sentence should not be passed upon you at this time? A. No, sir. The Court: I have made, I believe more than a reasonable effort to determine the true status of your mind at the present time and at the time of the commission of this crime. The person to whom I alluded by making a statement that I was going to interview him with reference to the matter of your mentality, to wit, Doctor Griffin, head of the State Hospital at Norman, was out of Norman for an indefinite stay, however, I got to talk to Doctor Bay-burn, his assistant, who has been a doctor in that institution and an authority on abnormalities of the mind for 15 years or longer. The Doctor tells me that your mind is such that it might become unstable, but, however, on the occasion of the crime that you were in possession of your mental faculties.”

The court again fully advised- the defendant of his rights, concluding as follows:

“It will be the judgment and sentence of this court that in accordance with the laws of this state, you be, within ten days, by the sheriff, of this county transported to the state penitentiary at McAlester, Oklahoma, and that upon Wednesday, August 28, 1940, the warden of said institution inflict upon you the death penalty as provided! by the laws of the state of Oklahoma, by electrocution in each of the cases, 2265 and 2268, and may God have mercy on your guilty, guilty soul.”

The Court: Ordered that the court reporter prepare transcript for transmittal to the Governor.

It is to1 be noted that the transcript of the record submitted by you is properly certified to- by Ed Craig, Jr., court clerk of Garvin county. In addition thereto there appears a certificate by Ben T. Williams, district judge, that the same is a full, true and correct case-made and transcript, with direction that it be attested and filed by the clerk of said court.

Our Code of Criminal Procedure provides:

“The judge of a court at which a conviction requiring a judgment of death is had, must immediately after the conviction, transmit to the Governor, by mail or otherwise, a statement of the conviction and judgment, and of the testimony given at the trial.” § 8171, 22 Okl.iSt.Ann. § 1002.

And further provides: “The Governor may thereupon require the opinion of the judges of the Criminal Court of Appeals, or any of them, upon the statement so furnished.” Section 3172, 22 Okla. St. Ann. § 1003.

It is well settled that the last above-quoted provision contemplates that an advisory opinion of the judges may be given to the Governor, when an appeal has not been taken in a capital case from a judgment and sentence of death. The proposition then presented would be, Has there been an observance of all the formalities of law essential to the taking of human life, and has the trial, conviction, and sentence of death been in accordance with the law of the land? Opinion of the Judges, 3 Okla.Cr. 315, 105 P. 684; Opinion of the Judges, 6 Okla. Cr. 210, 118 P. 156.

Penal Code, sec. 2222, 21 Okla. St.Ann. § 707, provides as follows:

“Every person convicted of murder shall suffer death, or imprisonment at hard labor in the state penitentiary for life, at the discretion of the jury. Upon trial of an indictment for murder, the jury, if they find the defendant guilty, must designate in their verdict whether he shall be punished by death or imprisonment for life at hard labor, and the judgment of the court shall be in accordance therewith. But upon a plea of guilty the court shall determine the same.”

The first question presented for our consideration is whether, according to a proper judicial construction, the concluding clause of the above section authorizes the district court to pronounce and enter a judgment of death upon a defendant’s plea of guilty, or whether, on the contrary, it is necessary under the statute to submit the question whether he shall be punished by death or imprisonment for life at hard labor to the discretion of a jury.

There is no reason why this provision of the Penal Code is not constitutional ■ and valid. A conviction of crime may be had in three ways; either by the verdict of a jury, or by findings of fact, by the judge where a jury is waived, sec. 20, art. VII, Const., Okla.St.Ann., or by a plea of guilty. Where a defendant who is indicted or informed' against for a capital crime in a court of competent jurisdiction pleads guilty, the court is authorized to pronounce judgment and sentence against such defendant according to law. The authority thus granted is not in any degree affected or controlled by the previous provisions contained in said § 2222, supra, that:

“Every person convicted of murder shall suffer death, or imprisonment at hard labor in the state penitentiary for life, at the discretion sof the jury.”

And that:

“Upon trial of an indictment for murder, the jury, if they find the defendant guilty, must designate in their verdict whether he shall he punished by death or imprisonment for .life at hard labor, and the judgment of the court shall be in accordance therewith.”

The foregoing provisions apply only to' cases where there is a trial upon an indictment or information for murder on a general plea of not guilty.

It is evident that the foregoing provisions of our Penal Code were not designed to abrogate the well-established rule of the common law, by which a party indicted for an offense, however grave in nature, may enter a plea lof guilty thereto, if he sees fit SO' to do. In such cases there is no< issue to be submitted to a jury on which a verdict can be founded. All that the court is required to do is to render judgment and sentence imposing punishment as prescribed by law for the crime committed. Opinion of the Judges, 6 Okla. Cr. 18, 115 P. 1028; Opinion of the Judges, 18 Okla. Cr. 20, 192 P. 597.

The Bill of Rights provides that:

“In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed. * * * He shall have the right to be heard by himself and counsel; and in capital cases, at least two days before the case is called for trial, he shall be furnished with a list of the witnesses that will be called in chief, to prove the allegations of the indictment or information, together with their postoffice addresses.” Okla. St. Ann. Const art. 2, § 20.

From the record it appears that the complaint in the first case was filed before E. B. Garvin, connty judge ¡of Garvin county, sitting as an examining and committing magistrate on May 17, 1940. On the same day the defendant waived a preliminary examination and was held to answer to the district court. On the same day an information was filed in the district court, and on the same day the defendant was arraigned in said district court.

It also appears that the complaint in the second case was filed before E. B. Garvin, county judge of Garvin county, sitting as an examining and committing magistrate on May 20, 1940. A preliminary examination was held to answer in the district court. On the same day an information was filed in the district court of Garvin county, and on the same day defendant was arraigned in the district court, and waived his constitutional and statutory rights and entered a plea of guilty as charged in the information.

The record affirmatively shows the personal waiver on the part of the defendant of his constitutional and statutory rights, and that following the appointment of counsel by the court in each case he again waived his constitutional and statutory rights.

In the case of Starr v. State, 5 Okla. Cr. 440, 115 P. 356, 367, we said:

“Generally speaking, the constitutional provisions guaranteeing to every accused person in a criminal action certain rights may be separated into two' classes. First, those in which the public generally, and as a community, is interested, as well as the accused, and which are jurisdictional as affecting the power of the court to try the cause, second, those more in the nature of privileges which are for tbe benefit of the accused alone, and do not affect the general public. The former cannot be waived. Jurisdiction to try the cause is conferred by the law. Consent cannot confer jurisdiction, but the accused may waive a constitutional right or privilege designed for his protection, where no question of public policy is involved. The public as well as the accused have an interest in every criminal trial. The life and liberty of the citizen is a matter oif supreme importance to the state, and it should not allow him to' throw either away by a failure, intentional or otherwise, to take advantage of his constitutional safeguards. It will not do, however, to say that because the state has a peculiar interest in protecting the citizen accused of crime to the extent of his constitutional rights that he shall in no case be allowed to waive them, for in some cases it may be to' his interest to' waive them, and the denial of the right to do' so would defeat the very object in view when the rights were given, and cause them to operate to the injury rather than to' the benefit of the accused.”

To- the same effect is Blagg v. State, 36 Okla. Cr. 337, 254 P. 506; Howington v. State, 30 Okla. Cr. 243, 235 P. 931.

Where it appears from the record, as in this case, that a defendant has been fully advised as to his constitutional and statutory rights, and as to the consequences of his plea, and that with such knowledge he deliberately enters a plea, of guilty, the trial court is justified in accepting it, even in a capital case.

From that careful examination and consideration of the record transmitted by you our advisory opinion is that the necessary legal steps and proceedings were taken in this case essential to the taking of human life under a charge of murder; that the defendant was accorded the benefit of all constitutional and statutory rights not specifically waived by him; and that his conviction and sentence of death has been in accordance with the law of the land.

While no motion for a new trial or in arrest of judgment was interposed in behalf of the defendant in these cases, the Code of Criminal Procedure, sec. 3189, 22 Okla. St. Ann. § 1051, provides that appeals to this court may be taken by a defendant as a matter of right from any judgment rendered against him.

An appeal in a criminal case is taken by filing in this court, with petition in error attached, either a duly certified case-made or a duly authenticated transcript of the record. An appeal in a felony case may be taken at any time within six months after the rendition of the judgment. Section 3192, 22 Okla. St. Ann. § 1054.

An appeal may be taken by the service of the notices on the clerk of the court and prosecuting attorney as provided by section 3193, 22 Okla. St. Ann. 1055, or else by the issuance and service of summons in error as provided by section 3198, 22 Okla. St. Ann. § 1060.

It is apparent, therefore, from the foregoing statutory provisions that in this case the defendant has six months Avithin Avhich to file an appeal in this court from the judgment and sentence of death rendered against him in these eases. Such an appeal may be taken by filing a duly authenticated transcript of the record proper as filed with the Governor in these cases, to which may be attached a petition in error. The defendant therefore would have until the 4th day of December, 1940, in which to take an appeal by filing a duly authenticated copy of the record Avith petition in error attached and proof of service ¡of notices of appeal.

In Hutchins v. State, 13 Okla. Cr. 717, 167 P. 388, 339, it is said:

“Under tbe Constitution and laws of tbis state an appeal may be taken by tbe defendant as a matter of right from a judgment of conviction in a criminal prosecution against him, and be is entitled to have tbis court review tbe proceedings bad upon bis trial and conviction when' such appeal is taken according to law. Every citizen should feel and know that under our Constitution and] laws there is no one so rich and powerful as to be above the just penalties of tbe law, and no one so poor and helpless as to be beneath its complete protection.”

Our Code of Criminal Procedure provides:

“When judgment of death is rendered, the judge must sign and deliver to the sheriff of the county a warrant duly attested by the clerk, under the seal of the court, stating the conviction and judgment and appointing a day on which the judgment is to' be executed, which must be not less than sixty nor more than ninety days from the time of the judgment and must direct the sheriff to' deliver the defendant within ten days from the time of judgment to the warden of the state prison at McAlester, in this state, for execution.” Section 8170, 22 Okla. St. Ann. § 1001.

It will be noticed that the last-quoted statutory provision requires the trial judge to appoint a day on which the judgment of death is to be executed, which must not be less than 60 nor more than 90 days from the time of the rendition of the judgment. The trial judge has m> discretion tO' appoint a day beyond the 90 days from the rendition of the judgment upon which the death sentence shall be carried into' effect. The maximum period allowed by the trial judge is therefore at least 90 days less than the time allowed by the law in which a defendant may exercise his statutory right of appeal to' this court, and if a defendant, convicted and sentenced to suffer death, should be executed prior to the time allowed by statute within which he may appeal to this court, he could thereby be deprived of the review of certain questions of law by this court which could properly be raised in an appealed case and not subject to review in an advisory opinion to the Governor. Opinion of the Judges, 18 Okla. Cr. 20, 192 P. 597; Noel v. State, 17 Okla. Cr. 308, 188 P. 688. The Code of Criminal Procedure, sec. 3173, St. 1931, 22 Okla. St. Ann. § 1004, provides as follows:

“No judge, court or officer, other than the Governor, can reprieve or suspend the execution of the judgment of death, * * * unless an appeal is taken.”

Under the statute and under the present status of these cases, it is a matter entirely discretionary with you, as Governor of the State of Oklahoma, to grant a reprieve or suspend the execution of the death sentence in these cases, until after December 4, 1940, on which date the defendant’s right of appeal will expire.

BAREFOOT and JONES, JJ., concur.