text:
    E. W. ROBBINS v. STATE.
    No. A-2414.
    Opinion Filed March 1, 1916.
    (155 Pac. 491.)
    1. COPY OF INDICTMENT — Service Duty to Furnish — Demand— Waiver. Under the Constitution (article 2, sec. 20, Bill of Bights), in all criminal prosecutions the defendant is entitled to a copy of the accusation against him; but, if he be at large so that he can go to the clerk’s offiee, call for, and examine the original accusation and copy it if he desires, the state is under no obligation to make and serve a copy upon him. However, if he demands a copy thereof, the state must furnish it, but, unless he demands it before announcing ready for trial, his right to a copy is waived.
    2. COPY OF ACCUSATION — Demand — 'Presentation for Review. The demand for a copy of the accusation should be made in open court, before announcing ready for trial; and the fact of the demand and the court’s ruling thereon should be made a matter of record, or shown by proper recitals in the case-made.
    3. LIST OF WITNESSES — Waiver 'of Bight. The defendant in a capital ease may waive his constitutional right to be furnished with a list of witnesses .that will be called in. chief to prove the allegations of the indictment or information, together with their post office addresses, at least two days before the ease is called for trial.
    4. INDICTMENT AND INFOBMATION — Preliminary Examination —Objection—Allegation—Proof. The fact that the defendant has had a preliminary examination need not be alleged in the information or shown affirmatively by the state, the law presumes that the defendant has had a preliminary examination or has waived it, and when the defendant relies upon the want of a preliminary • examination, the proper practice is to raise the question by motion to quash or set aside, or by plea in abatement before pleading to the merits; and if issue be joined on such a motion or plea, the burden of proof is upon the defendant.
    5. MOTION IN ABBEST — Verification of Information. ‘ An objection first made in a motion in arrest of judgment in a felony case upon the ground that the information was not • verified, is too late as the defect is waived by pleading and going to trial upon the merits without objection.
    6. PRESENTATION FOR REVIEW — Presumption — Presence of Defendant. In the absence from the case-made of a certified, transcript of the record including a copy of the minutes of the" trial, and where the question was not raised by objection made, or exception taken upon the trial, the presumption will be that the defendant was present during the whole trial.

      7. PRESENTATION FOR REVIEW — Affirmance. Every presumption favors the regularity of the proceedings had upon the trial. Error must affirmatively appear from the record; it is never presumed. The plaintiff in error must affirmatively show prejudicial error, otherwise the judgment of the trial court will be affirmed. '
    8. EVIDENCE OF RAPE. Evidence considered and held sufficient to sustain a conviction of rape in the first degree.

      Appeal from District Court, Payne County; A. H. Huston, Judge.

    E. W. Robbins was convicted of rape in the first degree, and appeals.
    Affirmed.
    The crime is charged to have been committed on the 27th day of July, 1914. The testimony given on behalf of the state was in substance as follows:
    Viola Gallagher testified that she lived with her mother on East Highlands, Cushing; that she worked for defendant Robbins in his cold drink stand on North Cleveland avenue on the 4th of July; on the twelfth and then on the 20th, and then began working for him again on the 24th, and from then until the night of the 30th day of July, 1914; that in the forenoon of July 27, defendant accomplished an act of sexual intercourse with her on a tool box behind the counter; that before this he had tried at least three times to have sexual intercourse with her, and each time somebody came.in; that in the afternoon of the 29th day of July, defendant again had sexual intercourse with her on his bed in the room in the rear of the cold drink stand. That about a year before she worked a few days for defendant and that time he pulled up her dress and “monkeyed with me with' his fingers.”
    Mrs. Ella Cattron testified that a day or two after her daughter quit working for defendant she found some of her under-clothes blood-stained and she told her daughter she was going to get a doctor, who then said that Mr. Robbins had been mistreating her; .that she then went to defendant and asked him for her daughter’s pay and told him that he had been mistreating her and defendant denied having mistreated her. That her daughter worked for defendant when she was twelve years old; that the 4th day of October, 1914, was her fourteenth birthday.
    J. F. King testified that he was on the police force of the city of Cushing; that in the summer of 1913 he saw the girl Viola Gallagher sitting on defendant’s lap, and his hand was under her clothes; that they were in the back end of the defendant’s cold drink stand at the time; that while the girl was working for defendant in July, 1914, he passed defendant’s place of business from two to a dozen times a day and would notice the girl and defendant close together when they were alone, and on seeing him they would step apart.
    Dr.. Manning testified that a few days before defendant’s preliminary examination he examined the prosecutrix and found the hymen ruptured and the vagina dilated; that he would not say that she had had sexual intercourse with a man, but she was capable of'having; that the parts were abnormal and indicated friction having been had:
    As a witness in his own behalf defendant testified that he was fifty-four years old; ,tha.t he had been crippled by falling off the house and breaking his hip about seven years before, and had to use crutches until about a year ago. He denied all acts of improper conduct with the prosecutrix.. He denied that he had ever taken any improper liberties with her. That prosecutrix besides working for him delivered milk to him nearly every night; that he often gave her some ice cream. That on the occasion when Mrs. Cattron accused him of improper conduct towards her daughter, she came in to his place of business and said she wanted a secret conversation with him and he asked her what for, and she said “You have mistreated my daughter.” He said she wanted some money. That at the time he did not owe the child anything for services or Mrs. Cattron for milk she had delivered; that the next day he was arrested.
    John.Holter testified that he stayed with defendant during the month .of July, 1914; that he usually left early in the morning and returned, late in the evening. That the tool chest in question belonged to him; that he did not notice any relations or conduct that he would consider improper on the part of th,e defendant towards the child.
    On cross examination he stated:
    “What I would judge would be improper others would think different. They' were friendly, intimately acquainted. They would have little frolics, just like any other good friends would have. She would throw water, and smut his face up, he would retaliate, and try to black her face, they would have little skirmishes back and forth. In the scuffles, in play back and forth she would do something to him and he would catch her and hold her in his arms. I think it was all good naturedly, not violently. I was convinced there was nothing more than that existing between them.”
    The defendant put his character as a law abiding citizen in issue. Four of five witnesses qualified and testified that his character as such was good.
    It appears from the record that after the judgment was rendered it having been made to appear to the trial court that defendant was unable to pay the costs of a transcript, the court ordered that the court reporter furnish defendant with, a transcript of the testimony, and that the court clerk furnish the record without cost to defendant, and by order of this court, upon proper application, the appeal herein was filed as that of a poor person.

      Paul J. McCarthy and Bur ford, Robertson & Hoffman, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, E. W. Robbins, was convicted in the District Court of Payne county of rape in the first degree, and his punishment assessed at fifteen years’ imprisonment in the penitentiary. The information in this case was filed in the District Court on the 15th day of September, 1914, and alleges that the crime charged therein was committed on the 27th day of July, 1914, upon the person, of Viola Gallagher, a female child under the age of fourteen years, and of the age of thirteen years.

From the judgment rendered on the verdict an appeal was' taken by filing in this court on March 12, 1915, a petition in error with case-made.

The errors assigned will be noticed in their orcier of presentation. It is claimed that:

“This being a capital case no list of the witnesses together with their post office addresses was ever served on defendant and no copy of the information was ever served on him prior to the trial as required by section 20 of article 2 of the constitution.”

It appears from the record that upon his arraignment defendant entered his plea of not guilty and the case was assigned for trial on December 2nd, on which day the trial commenced, and after the state and defendant had each announced ready for trial, and after the jury had been impaneled and sworn for the trial of the case, Wilberfore Jones, counsel for defendant made the following objection:

“Comes now the defendant and excepts to the order of the court requiring the defendant to go upon his trial at this time, for the reason that the bar docket did not reach the hands of attorneys for defendant until the 29th day of November, and for the further reason that the defendant was not present so that counsel could get the names of the witnesses for the defendant, and did not get them until Monday, November 30th, and the praecipe did not reach the office of the clerk by mail until the first day of this term and the subpoena for witnesses were not issued until this date, December 2nd, and defendant is wholly unprepared for trial at this time.
By the Court: Overruled.
By Mr. Jones: Exception.”

The only ruling of the court which presents this question is ah exception to the overruling of the motion in arrest of judgment.

In the case of Blair v. The State, 4th Okla. Cr. 359, 111 Pac. 1003, this court held:

“Under the Constitution of Oklahoma, the defendant is entitled to a copy of the indictment or information filed against him; but if he be at large so that he can go to the clerk’s office, call for and examine the original accusation, and copy it if he desires, the state is under no obligation to make and serve a copy upon him.”

In the case of State v. Frisbee, 8th Okla. Cr. 406, 127 Pac. 1091, it is held:

“Any person prosecuted in Oklahoma for a capital offense has the constitutional right to have furnished to him, at least two days before the trial begins, a list of the witnesses to be produced against him in chief by the state, and it would be error to force him into trial and allow such witnesses to testify against him whose names have not been so furnished, if he seasonably asserts his right. But if he fails to object to going to trial on this ground, but announces ready for trial, he cannot afterwards avail himself of this objection, and the constitutional right given him by this provision will be waived.”

And see Stouse v. State, 6th Okla. Cr. 415, 119 Pac. 271;

Addington v. State, 8th Okla. Cr. 703, 130 Pac. 311;

Franklin v. The State, 9th Okla. Cr. 178, 131 Pac. 183.

In this case upon the record presented we have nothing before us tending to show that defendant was denied his constitutional right to be furnished with a list of the witnesses together with their post-office addresses. In the absence of proof to the contrary all éssential preliminary proceedings must be presumed. Every presumption favors the regularity of the proceedings had in the trial court. The general rule often announced by this court is that error must affirmatively appear from the record, it is never presumed.

It is next urged that the information was defective because it was not verified and it does not allege that defendant had a preliminary examination.

No objection was made or question raised before or during the trial as to the information, and the only ruling of the court which presents this question is the overruling of the motion in arrest of judgment. The fact that defendant has had a preliminary examination need not be alleged in the information or shown affirmatively by the state, the law presumes that he has had a preliminary examination or has waived it.

Wines v. The State, 7th Okla. Cr. 450, 124 Pac. 466.

When a defendant relies upon the wknt of a preliminary examination, the proper practice is to raise the question by a motion to quash or set aside the information, or by plea in abatement before pleading to the merits. The state can then take issue on the motion or plea and the fact can be determined by the proofs and the burden of proof is on the defendant. In this case the testimony on the trial showed that defendant had a preliminary examination. One of his character witnesses testified that he was the committing magistrate in the case. An objection first made in a motion in arrest of judgment in a felony case upon the ground that the information was not verified is too late as the defect was waived by the defendant pleading and going to trial upon the merits without objection.

Under our statute no information is insufficient by reason of any impérfection in matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits. (Section 5747 Rev. Laws.)

“The verification is not part of an information charging a felony, and is therefore not an indispensable requisite. The object of such verification is not, as in misdemeanors, for a showing of probable cause supported by oath or affirmation to authorize the arrest of the accused, and is not for the purpose of evidence, which is to be weighed and passed upon,- but only, as we believe, to secure good faith and as a matter of good form in pleading.”

Henson v. The State, 5th Okla. Cr. 201, 114 Pac. 630;

Hughes v. The State, 7th Okla. Cr. 117, 122 Pac. 554.

Next, it is contended that,'“The record fails wholly to affirmatively show that defendant was present, in court during the argument of counsel before the jury, or that defendant was present in court at the time the jury returned its verdict.”

The question presented is raised for the first time in this court by defendant’s counsel, who it appears took no part in the trial. The case-made does not show that any objection was made or exception taken to any of the proceedings had upon the trial other than the one already noted, and the case-made does not include a certified copy of the record proper, although it appears that the trial court ordered that the same should be made- by the court clerk without cost to the defendant.

Our Procedure Criminal provides, section 5960 Rev. Laws:

“When judgment upon a conviction is rendered, the clerk must enter the same upon the minutes, stating briefly the offense for which the conviction has been had, and must immediately annex together and file the following papers, which constitute a record of the action.
First. The indictment and a copy of the minutes of the plea or demurrer.
Second. A copy of the minutes of the trial.
Third. The charges given or refused, and the indorsements, if any, thereon; and,
Fourth.- A copy of the judgment.”

This provision of the statute specifically defines what consti-tues, in a criminal case, the record proper, and a transcript of such record proper should be authenticated by the certificate of the clerk of the trial court as prescribed by rule 4, paragraph 2, of the rules of this court. When it appears from the properly certified transcript of the record that the trial court was without jurisdiction, or had lost jurisdiction in the case, such jurisdictional question may be raised for the first time in the Appellate Court. In the absence from the case-made in this case of a certified transcript of the record, the question argued is not' presented for review, and cannot be raised for the first time in this court. This court cannot consider questions, other1 than jurisdictional, which were not raised by objection made or exception .taken upon the trial,, or which were not grounds in the motion for a new trial, pr in the motion in arrest of judgment.

Having considered every argument or proposition propounded by counsel for defendant, and having carefully examined the case-made with a purpose to discover whether defendant has been 'deprived of that fa'ir and -impartial trial to which he is entitled under the law, and having carefully considered the evidence, we have been unable to find that he has been deprived of any constitutional or legal right, and have reached the conclusion that the evidence in the case fully warranted the verdict of the jury. The judgment of the District Court of Payne county is affirmed.

FURMAN and ARMSTRONG, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    BOB PARK v. STATE.
    No. A-2254.
    Opinion Filed March 4, 1916.
    (155 Pac. 494.)
    1. INTOXICATING- LIQUORS — Information — Insufficiency. An information which alleges that the defendant had in his possession intoxicating liquors, and which does not allege generally an intention to violate provisions of the prohibitory law, or specifically allege an intention to sell, barter, give away and otherwise furnish such liquors, is too indefinite to charge any offense, and a demurrer thereto would have been sustained.
    2. INTOXICATING LIQUORS — Prosecution — Sufficiency of Evidence. Evidence considered and held as a matter of law insufficient to sustain the conviction.

      Appeal from County Court, Greer County; C. M. Thacker, Judge.

    Bob Park, convicted of violating the prohibitory law, appeals.
    Reversed.

      B. M. Stewart, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was tried, convicted and sentenced to pay a fine of fifty dollars, and to be confined in the county jail for thirty days on an information which after alleging time and venue, charged that:

“Bob Park did then and there unlawfully have in his possession a large quantity of whisky, to-wit, about fifteen gallons, with the intention of then and there violating the law, contrary to,” etc.

To reverse the judgment an appeal by case-made was perfected. On motion of the attorney general the appeal was dismissed for failure to prosecute. (Park v. State, 11th Okla. Cr. 736.)

Upon a proper showing the order dismissing the appeal was set aside and the case submitted on briefs.

The evidence for the state was substantially as follows:

O. P. Melton testified that he was in the hauling and baggage wagon business at Mangum; that on the date alleged in the information the defendant called him on the street near the Mangum restaurant and gave him a check for a trunk, and said a party gave him the check and the trunk was to go1 to the fair grounds. That the county fair was going on at that time. That when he gave the check to the baggageman at the depot he showed him the trunk and when he went to take the trunk the under-sheriff and city marshal came in and said they would take the trunk.

J. A. McKibbin testified that he was under-sheriff and was at the Wichita Falls and North Western depot checking whisky shipments, and he shook a number of trunks; in one of them he heard bottles clink, and told the baggageman that he would have to arrest that trunk. The baggageman said that he had received the check and turned the trunk over to Mr. Melton, so he went back and told Mr. Melton that he would have to take that trunk, that he took the trunk and put it on Mr. Melton’s wagon and brought it to the court house and there opened it and found that .it was full of whisky. That there were no marks or brands on the trunk to indicate whom it belonged to.

W. M. Tuton, testified that he was city-marshal of Mangum and was at the depot with (the under-sheriff when Mr. Melton gave the baggage boy the check for the trunk and he took the check of the trunk and Mr. Melton started to take the trunk out and the under-sheriff told him they would take it. That they put the trunk in Mr. Melton’s wagon and brought it to the court house.

As a witness in his own behalf, Bob Park testified that he had been living in Mangum ten years, during which time he had been engaged in the business of public weigher for the county of Greer and buying cotton; that his present occupation was cotton buyer; that he remembered the circumstance of giving Mr. Melton, the drayman a check and fifty cents; that he had not seen the trunk until this day, and did not know its contents or to whom it belonged.

His further testimony is as follows:

“Q. You go ahead and state what led up to the circumstance of you giving Mr. Melton the check for this trunk. A. I was just coming from home and I came on up by the Mangum Cafe,- and a fellow stepped out of the restaurant there, and he said do any of you people know where I could get a man to haul a trunk for me, and I, just like anybody would, I said there is a man coming there now, I saw Mr. Melton, and he said I am in a hurry and I wish you would give him this check, and he said here is fifty cents to pay for the hauling of it, and I motioned for Mr. Melton and he came on and I gave him the check and fifty cents which the fellow gave me and told him to take the trunk to the fair grounds. The man got in a car with a woman and went on to the fair grounds.
“Q. Did you ever see this man and woman anymore? A. No sir.
“Q. State whether or not there was a crowd in town and they were going back and forwards from the fair grounds? A. Yes sir.
“Q. There was a good many show people coming in and going to and from the fair grounds? A. Yes sir.
“Q. State who was with you when this occurred? A. Mr. Futch and Mr. Rayburn.
“Q. What ‘Futch’ is that? A. Arthur Futch.
“Q. You may state whether or not, Bob, you made any statement to Mr. Melton at the time you gave him this trunk check? A. Yes, I stated to him that a fellow had just gave me this check, and I told him if it looked suspicious he had better let it alone.”

J. A. Futch testified that he had lived in Mangum seven years and was engaged in the cotton business and was present at the time Mr. Park received a trunk check from a man on the corner in front of the Mangum Cafe, and that he saw Mr, Park give the check to Mr. Melton, that Hodge Rayburn was with them at the time. He described the circumstance substantially the same as the defendant had testified.

Hodge Rayburn, testified that he had lived in Mangum twenty-two years, and remembered the circumstance of the defendant receiving a check from a stranger in front of the Mangum Cafe, that Mr. Futch and Mr. Park were standing there together and the man asked .something about getting a trunk delivered, saying that he was in a hurry; that after giving the defendant a check the man got into a car and drove off towards the fair grounds.

H. D. Bennett testified that he had lived in Mangum about ten years; was gate keeper at the fair grounds; that on the day in question a man and a lady drove up in an auto and the man asked if a job wagon had come in with a trunk. He described the man, which description was in substance the same as that of the other witnesses.

This appeal presents but two questions.

First: The sufficiency of the information to ’ charge an offense;

Second: The sufficiency of the evidence to sustain the verdict.

Upon arraignment the defendant interposed a demurrer upon the ground that the facts stated do not constitute a public offense.

The specific objection alleged against the information is that it simply alleges possession, “with the intention of then and there violating the law.”

_ It is necessary that an indictment or information allege every essential element of the crime intended to be charged, and this information does not allege generally an intention to violate provisions of the prohibitory law, and does not allege specifically an intention to sell, barter, give away and otherwise furnish, or to unlawfully convey.

Under numerous decisions of this court the demurrer should have been sustained.

Michael v. The State, 2nd Okla. Cr. 703, 103 Pac. 1069;

State v. Freeback, 3rd Okla. Cr. 508, 107 Pac. 442;

Buffo v. State, 4th Okla. Cr. 516, 113 Pac. 233;

Crooms v. State, 5th Okla. Cr. 576, 115 Pac. 610.

Upon a careful consideration of the evidence our conclusion is that the evidence is insufficient to show possession, or to show unlawful intent to violate provisions of the prohibitory law.

It follows that the judgment must be reversed and the cause remanded with directions to sustain the demurrer to the information.


author: DOYEE, P. J.

text:
    S. M. SMITH v. STATE.
    No. A-2376.
    Opinion Filed March 15, 1916.
    (155 Pac. 699.)
    1. HOMICIDE — Manslaughter—Sufficiency of Evidence. In a prosecution for murder the evidence examined and held to be sufficient to support a verdict convicting 'the defendant of manslaughter in the first degree.
    2. DEFENSE — Insanity. The true test of criminal responsibility, where the defense of insanity is interposed, is, whether' the defendant had sufficient reason to know right from wrong.
    3. HOMICIDE — 'Defense — Insanity — Reasonable Doubt. Section 5902 of Procedure Criminal provides: “Upon a trial for murder, the commission of the homicide by the defendant being proven, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable.” Held, that where the defense sought to be established is insanity, the legal presumption of sanity must be overcome by evidence which is sufficient to raise a reasonable doubt of the defendant’s sanity at the time of the commission of the homicide. When that is done, the presumption of sanity ceases, and the burden of establishing the sanity of the defendant is upon the state, which is then required to prove his sanity as an element necessary to constitute the crime, and if, upon consideration of all the evidence, together with all the legal presumptions applicable to the case, the jury have a reasonable doubt as to whether the defendant was mentally competent to distinguish between right and wrong, or to understand the nature of the act he was committing, he should be acquitted.

      Appeal from District Court, Muskogee County; Fred P. Branson, Judge.

    S. M. Smith was convicted of manslaughter in the first degree and appeals.
    Affirmed.

      M. L. Williams and B. C. Trice, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   DOYEE, P. J.

The plaintiff in error, S. M. Smith was by information charged with the murder of one Mrs. Bessie Brown, by shooting her with a pistol. Upon his trial he was found guilty of manslaughter in the first degree and his punishment assessed at 30 years’ imprisonment in the penitentiary. From the judgment rendered upon the verdict he appeals.

From the evidence given on the trial it appears that on the 12th day of January, 1914, about the middle of the afternoon, the defendant Smith purchased a loaded revolver of a pawn broker in the city of Muskogee, thus armed he went to the fire station on South Second street.

Shortly after, Mrs. Bessie Brown with a lady friend was walking down South Second street to the Midland Valley station, where Mrs. Brown intended to take the 5 :25 P. M. train. As they approached the fire station the defendant with a pistol in his hand walked up behind Mrs. Brown, she dropped the suit case she was .carrying and started to run across the street, the defendant fired the first shot and pursued, when five or six feet from her he fired the second shot which took effect in her hip, she shrieked, and turned down the street, overtaking her he pushed the pistol against her and fired, screaming, she ran on and he shot her again, overtaking her he snapped the pistol twice, and then began to strike her over the head with it.

At that time a policeman appeared and arrested the defendant. He- stated to those present “I hope I have killed her; she ruined my horpe.” His victim was taken to the Baptist hospital where four days later she died. It appears that the defendant a married man lived with his family for several years in Muskogee ■ where he conducted a bakery, the deceased a woman of the town was the proprietor of a rooming house, near his place of business, and she became his mistress. About two years before the tragedy the deceased went to Texas and the defendant' abandoned his family and followed her. After staying in Texas about a year they separated, and the defendant returned to his family. It also appears that about two weeks before the'shooting he registered as a guest at the Elro hotel in Muskogee, under an assumed name and inquired for the deceased who. was a guest at the hotel. Shortly after going to his room he assaulted the deceased and was choking her when several persons hearing her scream rushed in and prevented further assault. He then stated to those present “that woman robbed me out of four hundred dollars down in Texas.” There was also testimony tending to show that the defendant had threatened at various times to kill Mrs. Brown, and that he had said that “unless she paid him four hundred dollars she owed him, he was going to kill her.” The only defense attempted or suggested in behalf of the defendant, was insanity or such weakness or derangement of mind as to render him irresponsible in law, for the commission of the homicide.

The testimony of the defendant as a witness in his own behalf was substantially as follows:

“Q. Did you kill her? A. I did.
“Q. Will you tell the jury why you did? A. I killed her because it seemed that God told me to kill her, and I couldn’t help it.
“Q. Did you believe you were doing anything wrong to kill her ? A. I thought I was doing right to kill her.
“Q. You heard your wife testify about your attempting to commit suicide? A. Yes, sir.
“Q. How came you to do that? A. I just got tired and wanted to get away, couldn’t stay away from her here, she would not let me stay away from her. She threatened my wife and my wife’s life.
“Q. And you believed you were doing right to kill her? A. Yes, sir.”

Upon his cross examination the defendant was asked questions and gave answers as follows:

“Q. And you think you would have* done the wrong thing not to have killed her? A. Yes, sir.
“Q. Then you understand the difference between right and wrong? A. No, sir, not on that, I thought I ought to have killed her, I think so yet.
“Q. Well, now are you insane? A. No, sir.
“Q. Was God telling you to choke that woman in the Elro Hotel ? A. Told me to kill her, not choke her. He seemed to tell me to kill her. Something said to kill all the time.
“Q. God told you to make her give you $400.00 ? A. No, sir, didn’t mention anything about $400.00.
“By a Juror:
“Q. Are you conscious now of all that is -transpiring today in this trial? A. Yes, sir.
“Q. All that happens? A. Yes, sir.
“Q. And have known all the time? A. Yes, sir.”

One or two witnesses testified as to acts, conduct and declarations, of the defendant tending to show that he was at times irrational.

The defendant’s wife»as a witness in his behalf testified that just before he went to Texas he was severely ill,- and she thought he had taken laudanum; that she did not call a physician but treated him herself, and that he also tried to kill himself with a pistol that he took from á drawer of the dresser in her room; that she took the pistol from him and threw it away. That from her observation of him she would say that he was insane when he shot the deceased.

A physician testified that it was his opinion that the defendant was temporarily insane at the time he fired the fatal shots.

In rebuttal the pawn broker who sold him the pistol testified that when the purchase was made the defendant talked as any ordinary man would. Another witness testified to having had a conversation with him as he was leaving the pawn shop and that he seemed rational. Two physicians testified and gave as their opinion, based upon their examination of the defendant shortly after the shooting; that he was sane and gave the same answer to proper hypothetical questions.

No brief has been filed on behalf of the plaintiff in error, and we have not been favored with an oral argument in his behalf.

“When no counsel appears, and no briefs are filed, the court will examine the pleadings, the instructions of the court and the exceptions taken thereto, and the judgment and sentence and if no prejudicial error appears will affirm the judgment. 4. Court rules.”

We have carefully examined the evidence and the proceedings upon this trial with the care and deliberation due to the gravity of the inquiry, and we are satisfied that the plaintiff in error had a fair trial in which all his rights were protected.

The only defense sought to be established upon the trial was the insanity of the defendant at the time of the commission of the homicide, and the only question for the jury on the evidence was, whether the homicide was excusable on the ground of insanity, as was claimed by the defendant, or murder or manslaughter in the first degree. The defense interposed by the defendant and the law applicable thereto was fully and fairly submitted to the jury in the charge of the court which was in part as follows:

“No. 7. Gentlemen of the jury, you are instructed that the defendant has interposed as his defense in this case the plea of insanity. When that defense is interposed, the burden of proof is upon the defendant to introduce sufficient evidence to* raise in your minds a reasonable doubt of his sanity. It is not required that the defendant shall prove his insanity to the satisfaction of the minds of the jury by competent evidence beyond a reasonable doubt, or by a preponderance of the evidence. It is sufficient if he only introduces sufficient evidence to raise in your minds a reasonable doubt of his sanity, and when this is done, you are instructed that the burden of proof is upon the state to prove the sanity of the defendant by competent evidence, beyond a reasonable doubt, before you would be justified in convicting the defendant as charged in the information, and then the burden of proving the sanity of the defendant rests upon the state, like that of proving any other material allegation of the information; and, if you believe that the state has failed to prove by competent evidence, beyond a reasonable doubt, the sanity of the defendant, and if, upon a consideration of all the evidence, together with all the legal presumptions applicable to the case, the jury have a reasonable doubt as to whether the defendant was mentally competent to distinguish between right and wrong or to understand the nature of the act he was committing, he should be acquitted, otherwise he should be convicted. Given. Excepted to by the defendant. B. C. Trice, Atty. for Defendant. Exception allowed. Ered P. Branson, Judge.”

Under the decisions of this court this instruction was as favorable as the defendant had any right to demand.

Alberty v. The State, 10th Okla. Cr. 616, 140 Pac. 1025, 52 E. R. A. (N. S.) 248;

Adair v. State, 6th Okla. Cr. 284, 118 Pac. 416, 44 L. R. A. (N. S.) 119.

It is our conclusion after a careful consideration of all the testimony in regard to the mental condition of the defendant at the time of the homicide that the killing was the wilful, deliberate and premeditated act of a person who understood perfectly well the nature and consequences of his act. Evidently the life of this woman was sacrificed to the spirit of jealousy and revenge which animated an immoral and depraved creature, and those evil passions must be deemed the motives influencing the defendant in the commission of the homicide. From our examination of the record we are satisfied that no exception taken by the defendant upon the trial is of any force, and our conclusion is the law can only be vindicated by an affirmance of the conviction and judgment. The judgment rendered upon the verdict is therefore affirmed.

FURMAN and ARMSTRONG, JJ., concur.


author: DOYLE, P. J.

text:
    LOGAN STONE AND ADA SHOEMAKER v. STATE.
    No. A-2355.
    Opinion Filed March 15, 1916.
    (155 Pac. 701.)
    1. JURY — Selection of Jurors — Challenge for Cause — Information of Opinion — 'Question of Law and Fact — ¡Preliminary Showing. The issue raised upon a challenge for cause to a juror in a criminal ease on the ground that he has formed or expressed an opinion as to the issues to be tried, founded upon rumor, statements in public journals or common notoriety, is one of mixed law and fact to be determined by the court. Before the court can so determine, it must be shown by the examination of the juror upon his voir dire, not only that his opinion was formed solely in the manner stated, but in addition to this, the juror must swear unequivocally that he feels able, notwithstanding such opinion, to render an impartial verdict upon the law and the evidence. (Section 5861, Rev. Laws.)
    2. JURY — Discretionary Ruling — Challenge for Cause. The trial court’s refusal to sustain a challenge to a juror for cause will not be disturbed by the appellate court, where it appears from the examination of such juror that he had not talked with anyone who purported to know about the case of his own knowledge, but had heard neighborhood rumor about the ease, and that he had no opinion other than that derived from such rumor, and that he was positive that he could disregard that opinion, and try the ease solely upon the evidence, fairly and impartially.
    3. ADULTERY — -Right to Prosecute — -Husband and Wife. Under Penal Code (section 2431, Rev. Laws), "Prosecution for adultery can be commenced and carried on against either of the parties to the crime, only by his or her own husband or wife, as the ease may be, or by the husband or wife of the other party to the crime.’’ Held, that, by the provisions of this section, the spouse of either of the guilty parties is authorized to make complaint and carry on the prosecution against either or both of them.
    4. INDICTMENT AND INFORMATION — Objections —■ Fine for Making. Objections to an indictment or information based upon the absence of any essential preliminary proceeding should be made by proper motion or plea, before pleading to the merits.
    5. INDICTMENT AND INFORMATION — Objection—Sufficiency-Introduction of Evidence. Objections to the sufficiency of an indictment or information should be taken by a demurrer thereto as provided by our code of criminal procedure (section 5791, Rev. Laws)'. Our code further provides: "When the objections mentioned in section 5791 appear upon the face of the indictment or information, they can only be taken by demurrer, except that the objection to the jurisdiction of the court over the subject of the indictment or information, or that the facts stated do not constitute a public offense, may be taken at the trial, under the plea of not guilty, and in arrest of judgment.” (Section 5799, Rev. Laws.) Under this provision if it appears that the facts stated do not constitute a public offense, an objection to the introduction of evidence on that ground is sufficient to raise the question.
    6. ADULTERY — 'Information—Allegations—Prosecuting Witnesses. • While it is not essential to the sufficiency of an information for adultery that it should allege that the prosecution was commenced on the complaint of the husband or wife, as the case may be, the better practice would be to allege the name of the spouse, and that he or she was the complaining and prosecuting witness in the ease.

      Appeal from District Court, Delaware County; .JohnH. Pitchford, Judge.

    Logan Stone and Ada Shoemaker, convicted of adultery, appeal.
    Affirmed.

      Ad V. Coopedge, Geo. W. Fields, Jr. and Ben F. Williams, for plaintiffs in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiffs in error were jointly tried and convicted in the District Court of Delaware county on an information charging that in said county on or about the 5th day of January, 1913, they did, “commit the crime of adultery; in the manner and form as follows, to-wit: they, the said Logan Stone and Ada Shoemaker, then and there being, then and there did unlawfully, voluntarily and feloniously have sexual intercourse with each other, each of the opposite sex, not husband and wife, the said Logan Stone being a married man and the said Ada Shoemaker being a married woman contrary to,” etc.

The jury by their verdict assessed the punishment of Logan Stone at four years imprisonment in the penitentiary, and the punishment of Ada Shoemaker at three years imprisonment in the .penitentiary.

From the judgments rendered on the verdict they appeal.

The evidence for the state established-or tended to establish the following facts:

The prosecuting witness, John Shoemaker, married his wife Ada in 1910, and they lived on his place about four miles east of Jay, in Delaware county until sometime in 1913. The defendant Logan Stone, a married man, father of six or seven children, lived with his family about three miles east of Jay.

The prosecuting witness testified that on January 5, 1913, he saw Logan Stone ride up to his house and go in; that he slipped up to the house and forced the door open and found his wife Ada Shoemaker and Logan Stone in bed together; that Logan Stone raised up in the bed and he thought he had a gun so he went away. That one night about a month before that Amos and Albert Peyton were at his house ,playing cards; about nine o’clock his wife quit the card game and went out, a little later he followed her out and saw her standing in the yard talking to Logan Stone, that he went back -into the house and got a gun and came out and shot at Stone as he ran away; that whenever he would leave home, on his return he would find Logan Stone there with his wife. He identified hi§ signature to the original complaint filed with the examining magistrate.

Four or five witnesses testified to having seen the defendant frequently visit John Shoemaker’s home in his absence. One witness testified to having seen the defendants in the woods near Deerlick prairie, and there was no house within half a mile of the place, and that another time he saw them in a hollow near Shoemaker’s place, and they were lying down. Two or three witnesses testified that they heard the defendant Ada Shoemaker tell the defendant Logan Stone that he was the father of her baby. The defendants did not testify, and the evidence on the part of the state was uncontradicted.

It is contended that the court erred in overruling challenges for cause to jurors Davis and Ridenhour. The examination of these jurors was quite extended and it could serve no good purpose to restate the same. It is sufficient to say that both jurors stated in substance that they had heard neighborhood rumors about the case and that they both heard George Pitts talk about the case; that Pitts said that he was simply repeating what he had heard. Each stated that he had formed an opinion from what he had heard. Each stated in his examination by the court that notwithstanding such opinion he could and would act impartially and fairly upon the matters to be submitted to him, and would render a fair and impartial verdict under the evidence of the witnesses and the law as given by the court.

Under our statute the mere expression of an opinion by a juror in common conversation, without anything to show ill will, hostility, or a fixed determination of belief, is not a legal grotmd of challenge for cause. In order to disqualify the juror there must be, “the existence of a state of mind on the part of the juror, in reference to the/case, or to either party, which satisfies the court, in the exercise of a sound discretion, that he cannot try the issue impartially, without prejudice to the substantial rights of the party challenging,” section 5858 Rev. Laws.

The issue raised upon a challenge for cause to a juror in a criminal case on the ground that he has formed an opinion founded upon rumor, statements in public journals, or common notoriety is one of mixed law and fact to be determined by the court. Before the court can so determine it must be shown by an examination of the juror, upon his voir dire, not only that his opinion was formed solely in the manner stated, but in addition to this, the juror must swear unequivocally that he feels able, notwithstanding such opinion, to render an impartial verdict upon the law and the evidence. Section 5861 Rev. Laws.

Gentry v. State, 11th Okla. Cr. 355, 146 Pac. 719.

Under the statute and the decisions of this court there can be no doubt that these jurors were competent and qualified. The challenges for cause were properly overruled.

It is next urged that the information is insufficient to charge the crime of adultery.

The record shows that the first objection to the sufficiency of the information was made when the prosecuting witness Shoemaker was sworn and called as the first witness for the state, at which time the defendants’ counsel objected to the introduction of testimony “for the reason that the information does not charge an offense against the defendants or either of them; and the information does not show that this action was commenced or is being prosecuted by either the respective husband or wife of the defendants.”

Objections to an indictment or information based upon the absence of any essential preliminary proceeding should be made by proper motion or plea before pleading to the merits. Objections to the sufficiency of an indictment or information should be taken by a demurrer thereto as provided by our code of criminal procedure. Section 5791 Rev. Laws. Our code.further provides:

“When the objections mentioned in section 5791 appear upon the face of the indictment or information, they can only be taken by demurrei, except that the objection to the jurisdiction of the court over the subject of the indictment or information, or that the facts stated do not constitute a public offense, may be taken at the trial, under the plea of not guilty, and in arrest of judgment.” Section 5799 Rev. Laws.

Under this provision if it appears that the facts stated do not constitute a public offense, an objection to the introduction of evidence on that ground is sufficient to raise the question. However, when the objection to an information for a defect of form, apparent on the face thereof is raised for the first time by objection to the introduction of evidence, it comes too late and the objection should be overruled if the facts stated constitute a public offense.

Our penal code defines adultery as follows:

“Adultery is the unlawful voluntary sexual intercourse of a married person with one of the opposite sex; and when the crime is between persons, only one of whom is married, both are guilty of adultery. Prosecution for adultery can be commenced and carried on against either of the parties to the crime only by his or her own husband or wife, as the case may be, or by the husband or wife of the other party to the crime: . Provided, that any person may make complaint when persons are living together in open and notorious adultery.” Section 2431 Rev. Laws.

Upon the objection as made, the first question for determination is whether under the statute the prosecution was sufficiently commenced against the parties charged by the husband of the woman Verifying the original complaint filed before the committing magistrate.

This question is settled against the defendants’ contention in the case of Heacock v. State, 4th Okla. Cr. 606, 116 Pac. 949, where it was held that the verification of the information in a prosecution for adultery by the husband or wife of one of the accused, filed before the committing magistrate, is a . sufficient commencement of the prosecution. . .

The apparent intention of the legislature as to this offense being that if the parties injured wish to condone the wrong done, then no one else ought to be allowed to move in the matter; and, where there are two persons injured, either may complain, as, where the guilty parties are both married, the husband of the one or the wife of the other may make the complaint against either or both of the parties to the crime.

Kitchens v. The State, 10th Okla. Cr. 603, 140 Pac. 619;

And see State v. Wesie, 17 N. D. 567, 118 N. W. 20, 19 L. R. A. (N. S.) 786.

The next question for determination is, was it necessary to allege in the information that the prosecution was so commenced.

Our code of criminal procedure, section 5738 Rev. Laws requires only that the indictment or information contain, “a statement of the acts constituting the offense, in ordinary and concise language and in such a manner as to enable a person of common understanding to know what is intended.”

The making of the complaint is not an element of the offense, but it is a condition to its prosecution. The description of the offense is complete without reference to it.

Under statutes which provide that the prosecution can be commenced only upon the complaint of the husband or wife it is not necessary to allege that the prosecution was so commenced.

2 Corpus Juris 18.

In the case of State v. Anderson, 140 Iowa 445, 118 N. W. 772, the Supreme Court of Iowa held “In an indictment for adultery, under the statute, it is not necessary to allege that the prosecution was commenced on the complaint of the husband or wife.”

And see People v. Isham, 109 Mich. 72, 67 N. W. 819, and State v. Brecht, 41 Minn. 50, 42 N. W. 602.

While it is our opinion that the objection to the introduction of testimony was properly overruled, yet we think it would not be unprofitable to offer a suggestion upon the subject of indictments and informations charging adultery. It seems to us that under our statute which provides that the prosecution can be commenced and carried on only by the husband or wife of a party to the crime, the better practice would be to allege the name of the spouse and that he or she was the complaining and prosecuting witness in the case. Under this rule the information in question would contain, before the concluding clause, the words “the wife of John Shoemaker, the complaining and prosecuting witness in this case.”

No exceptions were taken on the trial to the instructions given by the court to the jury and the charge upon material points was as favorable to the defendants as they had a right to demand.

In view of the disclosures in the record, we are impelled to the conclusion that the sentences imposed are excessive, and that substantial justice requires a modification of the judgments rendered upon the verdict of the jury.

It is therefore ordered that the judgment against the defendant Logan Stone be modified from four years to three years imprisonment in the penitentiary, and the judgment against the defendant Ada Shoemaker be modified from three years to imprisonment for one year. As thus modified the judgments appealed from are affirmed.

FURMAN and ARMSTRONG, JJ., concur.


text:
    A. C. FLOWERS v. STATE.
    No. A-2338.
    Opinion Filed September 8, 1915.
    (155 Pac. 904.)
    1. APPEAL — Weight of Evidence. The credibility of witnesses, and the weight to be given their testimony, are matters for the determination of the jury, and to reverse a judgment on the ground that the verdict is contrary to the evidence, this court must find as a matter of law that the evidence was insufficient to warrant the jury in finding the defendant guilty.
    2. INTOXICATING LIQUORS — Prosecution—Evidence—Sufficiency. In a prosecution for the unlawful sale of intoxicating liquor, the evidence examined and held- sufficient to sustain the conviction.

      Appeal from County Court, Stephens County; J. W. Marshall, Judge.

    A. C. Flowers, convicted of a violation of .the prohibitory law, appeals.
    Affirmed.

      Womack & Brown, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error was convicted in the County Court of Stephens county on an information charging that he did. sell, barter and give away four and one-half pints of intoxicating liquor to one, D. W. Riddles. Judgment was rendered on July 23, 1914, and he was sentenced to pay a fine of $500.00’ and to be confined in the county jail for a period of ninety days. On September 17, 1914, he filed his petition in error and case-made with the clerk of this court.

The only question necessary to be considered is the sufficiency of the evidence to sustain the conviction. Mrs. M. E. Riddles testified that she was the wife of D. W. Riddles; that her husband was a consumptive, but sometimes was able to be up and about; that the defendant, Flowers, furnished him whisky several times and he sold it; that on the date charged, Flowers called at their house in Duncan, and went into" the kitchen and there left four bottles of whiskey in the kitchen cabinet. The defendant, as a witness in his own behalf, denied that he ever carried any whiskey to Mrs. Riddles’ house, and stated that he was never at her place but one time.

In our opinion, there is sufficient evidence in this case to sustain the verdict and judgment of conviction. It was for the jury to determine which witness was worthy of belief. The jury had the witnesses before them, and could see .their manner of testifying, and they no doubt in determining the truth, took into consideration all the attending circumstances of the case. Find1 ing no error in the record which in our opinion demands or would justify this court in setting aside this conviction, the judgment herein is affirmed.

FURMAN and ARMSTRONG, JJ., concur.


text:
    GRANT HAMLIN v. STATE.
    No. A-2674.
    Opinion Filed March 15, 1916.
    (155 Pac. 904.)
    APPEAL — Dismissal. Procedure Criminal, see. 5991, Rev. Laws, provides that: “'In misdemeanor eases the appeal must be taken within sixty days after the judgment is rendered; provided, however, the trial court or judge may for good cause shown extend the time in which such appeal may be taken not exceeding sixty days.” Held, that in such cases the appeal is taken by filing in this court a petition in error with case-made attached, or transcript of the record, together with proof of service of notices of appeal as required by the statute, and when this is not done within the time prescribed by the statute, this court does not acquire jurisdiction of the appeal, and such an appeal will be dismissed.
    (Syllabus by the Court.)

      Appeal from Cotmty Court, Creek County; Vick S. Decker, Judge.

    Grant Hamlin, convicted of violating the prohibitory law, appeals.
    Appeal dismissed.

      Burt & Shaha, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

On an information charging that in Creek county, on or about the 23rd day of April, 1915, the defendant, Grant Hamlin, did have in his possession three cases of whisky and two hundred bottles of beer, with the unlawful intent to sell the same, he was tried and convicted in the County Court of Creek county. On the 11th day of September, 1915, the court rendered judgment and sentenced said defendant to be confined in the county jail for sixty days and to pay a fine of one hundred dollars. From the judgment rendered, an appeal was attempted to be taken by filing in this court on March 11, 1916, a petition in error with case-made attached.

The attorney general has filed a motion to dismiss the appeal for the reason that the appeal was not filed within the statutory time allowed by section 5991 Rev. Laws. It appearing on the face of the record- that said appeal was filed just six months after the judgment was rendered.

Our Procedure Criminal provides that:

“In misdemeanor cases the appeal must be taken within sixty days after the judgment is rendered, provided, however, that the trial court or judge may, for good cause shown, extend the time in which such appeal may be taken not exceeding sixty days.”

Section 5991 Rev. Laws.

In this case the time for filing the petition in error in this court expired the 9th day of January, 1915. This court has uniformly held that in order to confer jurisdiction on this court to review a judgment appealed from, the appeal must be taken within the time prescribed by the statute.

In the case of Bandy v. State, 5th Okla. Cr. 397, 114 Pac. 341, it is said:

“We believe that the 'statute requiring appeals in misdemeanor cases to be taken within 60 days and permitting the trial court or judge for good cause shown to extend the time not exceeding 60 days is a reasonable statute, calculated to promote swift and sure justice. Where an appeal is not perfected by filing in this court a petition in error with case-made attached, or a transcript of the record, together with proof of service of notices of appeal as required by section 5991 Rev. Laws, within the time prescribed by the statute, this court does not acquire jurisdiction of the appeal, and such appeal will be dismissed.”

For the reasons stated the motion to dismiss the appeal is sustained and the cause remanded to the County Court of Creek county with direction to enforce the judgment and sentence. Mandate forthwith.


text:
      In re SAM HAYS.
    No. A-2508.
    Opinion Filed April 15, 1916.
    (155 Pac. 1118.)
    In the matter of the application of Sam Hays for writ of habeas corpus.

    Writ denied.

      A. L. Beckett, for petitioner.

      R. McMillan, Asst. Atty. Gen., for the respondent.
   PER CURIAM.

This was a petition for a writ of habeas corpus to the warden of the state penitentiary at McAlester, wherein Sam Hayes alleges that he is unlawfully restrained and imprisoned in the penitentiary at McAlester upon a purported penitentiary mittimus issued out of the District Court in and for Haskell county upon a judgment and sentence rendered by said court upon the verdict of a jury finding the petitioner guilty of the crime of larceny of live stock; that T. M. Crews, the justice of the peace before whom his preliminary examination was had was ineligible to the office of justice of the peace, and the preliminary examination of this petitioner was a nullity and was without authority of law aná void, and this petitioner at no time waived his right to have an examining trial.

The attorney general interposed a demurrer to the petition .for the writ. On the case as presented by the record it is the judgment of this court that the demurrer is well taken. The writ of habeas corpus is therefore refused.


author: PER CURIAM:

text:
    JIM ROGERS v. STATE.

      No. A-2525.
    Opinion Filed May 6, 1916.
    (155 Pac. 1150.)

      Appeal from County Court, Pontotoc County; I. M. King, Judge.

    Jim Rogers, convicted of a violation of the prohibitory law appeals.
    Affirmed.

      Roddie & Roland, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM:

Plaintiff in error, Jim Rogers, was convicted on a charge of selling intoxicating liquor and was sentenced to pay a fine of fifty dollars and to be confined in the county jail for thirty days.

The evidence for the state tended to show that Jim Rogers sold a pint of alcohol to T. E. Moore.

As a witness in his own behalf plaintiff in error, Jim Rogers denied making the sale. The issue was clearly one of fact for the jury to determine. The record presents no question of law for the determination of this court. It follows that the convic tion should be affirmed. The judgment is therefore affirmed. Mandate forthwith.


text:
    WALT COOK v. STATE.
    No. A-2532.
    Opinion Filed May 20, 1916.
    (156 Pac. 233.)
    1. APPEAL — Verdict—Evidence. Where there is competent evidence, reasonably tending to support every material allegation in an information, the determination of the jury will not be interfered with by this court.
    2. INTOXICATING LIQUORS — Sufficiency- of Evidence. In a prosecution for the unlawful possession of intoxicating liquors, evidence examined and found sufficient to sustain a conviction.

      Appeal from County Court, Garfield County; E. L. Swigert, Judge.

    Walt Cook, convicted of a violation of the prohibitory law, appeals.
    Affirmed.

      H. J. Sturgis and W. O. Cromwell, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error Walt Cook, was tried and convicted in the County Court of Garfield county on an .information charging that he did have in his possession seven quarts of whisky and about one-third of a barrel of beer with the intention of selling the same. On the 39th day of April, 1915, the court rendered judgment and he was sentenced to- be confined in the county jail for one hundred and twenty days and to pay a fine of three hundred dollars and the costs amounting to thirty-one dollars and fifteen cents.

From the judgment he has appealed.

The errors assigned are in effect that the verdict is contrary to the law and the evidence; that the court erred in its instructions to the jury.

The evidence on the part of the state is in substance as follows: W. R. Arnold, chief of police of the city of Enid testified that on the day alleged in the .information he served a search warrant on the defendant’s place of business, 209 South Grand avenue, Enid, and found twelve pints of whisky and about a third of a barrel of beer in the basement below the store room, which he seized and turned over to the sheriff. That he also found three barrels of empty beer bottles.

Ed Davis, deputy sheriff testified that he was with the witness Arnold when they found the whisky and beer.

There was no testimony offered on the part of the defendant.

By numerous decisions it is held that this court will only set aside a verdict because it is contrary to the evidence in the case where the jury has plainly decided against the evidence, or where the verdict is without evidence.

After a careful examination of the record our conclusion in this case is that the verdict was in accordance with the evidence. Finding no prejudicial error in the record, the judgment is affirmed.


text:
    PRESLEY HOPPER v. STATE.
    No. A-2463.
    Opinion Filed April 1, 1916.
    (156 Pac. 240.)
    1. APPEAL — Verdict—Evidence. Where there is competent evidence reasonably tending to support every material allegation in an information, the determination of the jury will not be interfered with 'by this court.
    2. CATTLE THEPT — Sufficiency of Evidence. In a prosecution for cattle theft, evidence examined and found sufficient to sustain the conviction.

      Appeal from District Court, Haskell County; J. H. Brown, Judge.

    Presley Hopper, convicted of cattle theft, appeals.
    Affirmed.

      A. L. Beckett, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, Presley Hopper, and his brother Oscar Hopper were jointly informed against for the theft of a certain steer, the property of J. M. Duke. A severance was demanded and upon his separate trial Presley Hopper was convicted and his punishment fixed at five years imprisonment in the penitentiary. From the judgment rendered on the verdict he has appealed.

No brief has been filed and when the case was called for final submission no appearance was made on behalf of the plaintiff in error, whereupon the case was submitted on the merits.

It appears from the evidence that J. M. Duke missed two or three steers from his range and in making a search for them found one steer not far from where two steers had been butchered in a thicket in or near the defendant’s pasture. The steer in question was a two-year-old dun colored steer and it appeared that one of the animals butchered in the pasture was dun colored.

Several witnesses testified to seeing the defendants driving steers near the pasture, one of which answered the description of the alleged stolen steer.

As a witness in his own behalf Presley Hopper testified that at that time he was in the butcher business with his nephew at Quinton; that his nephew bought a bunch of cattle about that time; that they butchered a couple of the animals in their pasture. That the last one they butchered in the pasture was a Jersey colored cow that he had brought in from the Black Gum Flats up in the Sans-Bois mountains; that he sold and delivered this beef to Tom Alexander without bringing it to his butcher shop. That when he started away from the pasture with the beef, the hide fell off of the hack into the mud and he could not put it back without ruining the meat so he left it there and for that reason he; did not bring the hide to Quinton. That this cow had strayed and was gone a year before he found her on the Black Gum Flats.

Where the testimony is conflicting, the credibility of witnesses and the weight to be given their testimony is a matter for the jury to determine. In the case before us there is competent evidence tending to support every material averment in the information and in our judgment the evidence amply sustains the verdict of the jury. Finding no error in the record the judgment appealed from is- affirmed.


text:
    SILMON THOMAS v. STATE.
    No. A-2462.
    Opinion Filed April 5, 1916.
    (156 Pac. 240.)
    HOMICIDE — ’Evidence—Weight and Sufficiency. In a prosecution for murder the evidence considered and held sufficient to sustain a conviction for'manslaughter in the first degree.

      Appeal from District Court, Haskell County; . W. H. Brown, Judge.

    Silmon Thomas was convicted of manslaughter in the first degree and appeals.
    Affirmed.

      Thos. H. Owen and A. L,. Beckett, for plaintiff in error. '

      R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error, Silmon Thomas, was informed against for the crime of murder, alleged to have been committed in Haskell county on or about the 1st day of November, 1913, by shooting one Bobo Morris with a shot gun. Upon his trial in the District Court of said county, a verdict of manslaughter in the first degree was returned and his punishment assessed at imprisonment in the penitentiary for the term of fifty.years. From the judgment rendered in pursuance of the verdict an appeal was taken by filing in this court on May 19, 1915, a petition in error, with case-made.

The evidence shows that the defendant and the deceased were Choctaw Indians, residing six or seven miles east of Stigler. Frank Robinson lived in the same neighborhood. On the night of the tragedy there was a‘ dance at Robinson’s house; and about midnight the defendant and Frank Robinson left the dance and went to the home of Bobo Morris, the deceased; they had some whisky and alcohol with them.

Frank Robinson testified that' they stayed at Bobo Morris’ house about two hours drinking the whisky. The defendant then said he had more whisky at home, and asked them to go home with him, and they would have a good time. That in the meantime Mrs. Morris and her children returned from the dance. That they started up the road to the defendant’s home and where the road crosses the branch witness left them, saying that he was going home. That when he reached, his house he heard a. shot fired and shortly after he heard two more shots; in a few minutes the defendant appeared and said that he had killed Bobo Morris. Witness told him he did not believe him and he said, “If you don’t believe it come with me and I will show you.” That they started back and when they were going down the road the defendant stopped and went to the rail fence by the road side and picked up a shot gun - that he found the body of Bobo Morris lying by the side of the road; and he examined the body and told the defendant.that Bobo Morris was dead. That he also made an examination of the ground but did not see a knife or weapon of any kind. That he then went to Morris’ house and- told Mrs. Morris that Silmon Thomas had shot and killed her husband and telephoned the neighbors.

J. M. Hickman testified that in answer to a telephone call from Frank Robinson he started to where the shooting occurred and arrived there about sunrise; that he found the body lying in the road about two hundred yards from Frank Robinson’s house and between the homes of the defendant and the deceased; that he examined the body and found a gun shot wound in the breast and also gun shot wounds in the lower limbs. That there was a large rock near the middle of the road, ten or twelve feet from the body and this rock was covered with blood and there was a zigzag trail of blood from the rock to the body. That he picked up ten or twelve shot near the rock. That there was an oak tree in the road about sixty feet from the body and a charge of shot had penetrated the trunk of the tree about five feet above the ground. That he examined the pockets of the clothing on the body and found nothing in them.

Several witnesses testified that they reached the scene of the homicide shortly after the shooting and stayed there until sunrise. That about .that time the defendant appeared and said that the deceased “run him to there with a knife and he went and got his gun and shot him,” that he further stated, “He would not mind to put up ten years for it, but he was not going to put up more than ten.” He then said “He was going to town and give up,” and as he started off he said, “I am the damn nerviest little Indian in Oklahoma, I have killed one Indian and would kill another.”

As a witness in his own behalf Silmon Thomas, the defendant, testified that he was a Mississippi Choctaw, that he knew Bobo Morris in Mississippi; that with his wife who is a stepdaughter of Frank Robinson he attended the dance that night and about midnight Frank Robinson took him out in the horse lot and gave him a drink of whisky and asked him to go with him to Bobo Morris’ house; that they went there and sat around the fire place drinking the whisky; that Frank Robinson also had a pint of pure alcohol. That Mrs. Morris returned home and said, “The dance is broke up,” that he told them'that he was going home and leaving there he went to Frank Robinson’s house and found his wife in bed there, she said she would come home in the morning and while he was talking to his wife Frank Robinson came in; that he decided he would go on home, and after going about a hundred yards from Frank Robinson’s house, he met Bobo Morris who said he was going to cut his damn head off; that he ran towards home and Morris followed him; that he went into his house ran through the front door and got his shot gun and went out the back' door and then ran back about fifty yards and Morris followed him; that he then stopped and told Morris, that he would shoot him if he did not stop following him and he fired the first shot.

That he ran on a little piece and again told Morris to stop and Morris would not stop, so he fired the second shot; that he reloaded the gun and Morris still following him said he was going to cut and kill him and he fired-again and shot Morris in the breast; that he then went up to Frank .Robinson’s house and told him that he had killed Bobo Morris; that he did not know whether Morris had a knife or not.

No brief has been filed and when the case was called for final submission no appearance was made on behalf of the plaintiff in error. Whereupon the cause was submitted on the record. Nothing appears from'the evidence to indicate that the defendant had any motive to kill the deceased, however, the evidence shows that both were more or less intoxicated and it is highly probably that some disagreement arose between them as is frequently the case with Indians stimulated in this manner. The defense interposed in our judgment entirely failed and was properly discredited--by the jury. It is apparent from the record that justice' has been done and the judgment ought not to be reversed except for some error in the proceedings prejudicial to the substantial rights of the defendant.

We have carefully reviewed the record and examined the proceedings upon the trial, and we are satisfied that the record presents no question that would warrant this court in interfering with the judgment. It is therefore affirmed.

ARMSTRONG, J., concurs; FURMAN, absent on account of sickness.


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      In re JOHN HUDLESTON.
    No. A-2584.
    Opinion Filed April 5, 1916.
    (156 Pac. 242.)
    HABEAS COBPTJS — Grounds for Belief — Sufficiency of Evidence. 'Where there is no legal or competent evidence to sustain it, an order of commitment to hold for trial before the district court by an •examining magistrate, is void and the petitioner will be discharged on habeas corpus.
    Application of John Hudleston, Newt Hudleston and George King, for writ of Habeas corpus.

      C. H. Ruth, for-petitioners.

      Robt. B.. Wood, Asst. Atty. Gen., for respondent.
   PER CURIAM.

John Hudleston, Newt Hudleston and George King, filed in this court a duly verified petition wherein they allege that they and each of them are illegally restrained and unlawfully imprisoned by Elsworth Hume, sheriff of Garfield county.

The petition sets forth the following facts:

That the petitioners were arrested in Oklahoma county on the 20th day of September, 1915, and there confined in the county jail until the 7th day of October, 1915, at which time they were transferred to and confined in the county jail of Garfield county to answer a charge of felony as set forth in the complaint filed before J. B. Ratliffe, a justice of the peace_ within and for Enid city district, Garfield county. In said preliminary complaint petitioners were jointly charged with the larceny of a Ford touring car of the value of three hundred and fifty dollars, the property of one Frank Manning. That on October 29, 1915, a preliminary examination was had before the said justice of the peace and that upon said hearing no competent evidence was introduced to in any manner connect these petitioners with the commission of the offense. That the said justice disregarding the evidence in the case arbitrarily and oppressively and without probable cause ordered said petitioners committed to the county jail to answer the said charge in the District Court of Garfield county.

Attached to said petition is a duly certified transcript of the, testimony taken upon said preliminary examination.

A rule to. show cause issued returnable November 30th, at which time the application was submitted on the petition, transcript and answer.

The attorney general conceded that there was no legal or competent evidence introduced upon the preliminary examination which proved or tended to prove in any manner that the petitioners, Newt Hudleston and George King were in any way connected with the commission of the crime charged.

Upon a careful examination of the record and the evidence were are satisfied that there is no legal or competent evidence to . sustain the order of commitment as to the petitioners Newt Hudleston and George King. On this 7th day of December, 1915, it is ordered by the court that said petitioners be discharged.

There being some evidence tending to connect the petitioner John Hudleston with the commission of the crime charged, the writ as to said petitioner will be denied.


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      In re W. R. HILL.
    No. A-2538.
    Opinion Filed April 15, 1916.
    (156 Pac. 686.)
    1. HABEAS CORPUS — Matters Reviewable — Jurisdiction. The review of a judgment of conviction and imprisonment by writ of habeas corpus is limited to the questions: Had the court which rendered the judgment jurisdiction of the subjeet-matter and of the person convicted? And, did the the court in the course of the proceedings which resulted in the judgment lose jurisdiction to render a valid judgment and sentence?
    2. HABEAS CORPUS — Right to Discharge — Defective Accusation. A discharge from imprisonment under a criminal conviction cannot be granted on habeas corpus, because the indictment or information was defective.
    Petition by W. R. Hill, for a writ of habeas corpus.

    Writ denied.

      Ben F. Williams and Blanton & Andrews, for petitioner.

      R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

In his petition for a writ of habeas corpus, W. R. Hill alleges that he is unlawfully restrained of his liberty by B. R. Rayburne, sheriff of Garvin county, under a commitment issued out of the District Court of said county on a judgment rendered in said court on a verdict of a jury returned in said court. Which verdict reads as follows:

“We, the jury, drawn, empaneled and sworn in the above entitled cause, do upon our oaths, find from the law and the evidence the defendant W. R. Hill guilty as charged in the information of removing mortgaged property from the county without the written consent of the holder of the mortgage indebtedness, and fix his punishment at a fine of three hundred dollars. J. L. Menefee, foreman.”

That the information upon which the petitioner was tried “is fatally and fundamentally defective and did not and does not charge this petitioner with any offense under the laws of the state of Oklahoma; that the verdict and. judgment thereon are illegal and void and have no force or effect, and the petitioner is therefore held without due process of law.” A copy of the information being attached as an exhibit to the petition.

The writ issued and the return of the sheriff to the writ states that he holds the petitioner in custody by virtue of a commitment duly issued out of the District Coitrt of said county upon the failure and refusal of said petitioner to pay the fine and costs imposed by the judgment rendered upon the verdict. Where a prisoner in custody under sentence of conviction seeks to be discharged on habeas corpus, the law is well settled that the inquiry is limited to the questions: “Had the court which rendered the judgment jurisdiction of the subject matter and of the person convicted?, and did the court in the course of the proceedings which resulted in the judgment lose jurisdiction to render a valid judgment and sentence?”

Wilkins v. The State, 7th Okla. Cr. 422, 115 Pac. 1118.

It is contended on behalf of the petitioner that the facts as alleged in- the information, if true, do not constitute a felony under our penal code.

Upon an examination of the information our conclusion is that the contention made is without merit. A discharge from imprisonment under a criminal conviction cannot be granted on habeas corpus because the indictment or information was defective.

Ex Parte Woods, 7th Okla. Cr. 645, 125 Pac. 440.

Habeas corpus does not lie to coirect mere irregularity of procedure where there is jurisdiction.

For the reasons stated the writ of habeas corpus is discharged and the petitioner is remanded to the custody of the sheriff of Garvin county.


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    TOM LAYMAN v. STATE.
    No. A-2456.
    Opinion Filed April 22, 1916.
    (156 Pac. 907.)
    1. WEAPON — Pointing—Instruction. In a prosecution for pointing a pistol at another it was error for the court to refuse to instruct the jury upon the question of defendant’s right of self-defense, where the testimony for defendant tended to show that he was assaulted by the complaining witness with a dangerous weapon.
    2. ASSAULT AND BATTERY — Criminal Responsibility — Defense of Property. A man has the legal right to protect his property against trespass, opposing force to force.

      Appeal from County Court, Pottawatomie County; Hal Johnson, Julge.

    Tom Layman, was convicted of pointing a pistol at another, and appeals.
    Reversed.

      H. H. Smith and I. C. Sanders, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, Tom Layman, herein referred to as defendant was tried and convicted in the County Court of Pottawatomie county on an information charging that he did unlawfully, intentionally and without authority of law point a pistol at the person of one Eugene Tarltón. In pursuance of the verdict he- was sentenced to he confined in the county jail for a period of ninety days and to pay a fine of fifty dollars. To reverse the judgment he appealed by filing in this court March 11, 1915, a petition in error with- case-made.

The material facts which the evidence tends to show were as follows:

The defendant lived with his mother on her place ■ a few miles from Shawnee and his son and daughter-in-law lived directly across the road. The complaining witness with his father and several other persons were passing along this highway in a wagon and a dog belonging fi> the complaining witness began fighting a dog belonging to defendant. The complaining witness, Eugene Tarlton and one or two other persons in the wagon got out and attempted to separate the dogs. The complaining witness had an iron end-gate rod in his hand and threatened or attempted to strike defendant with the iron rod. Defendant went to his house and returned with a pistol. The complaining witness testified that defendant pointed the pistol at him and told him “to go on up the road”-and he tpld defendant that if he would put the gun down he would show him where a man laid in about a minute. He admitted that he had an iron rod in his hand at the time. Henry Bowen for' the state testified that he was with the crowd in Tarlton’s wagon and they were on their way to pick cotton when the dog fight started. That Eugene Tarlton and a brother of witness jumped out of the wagon and were kicking at the dogs and trying to separate them when defendant ran up and said something about kicking his dog. That he then ran back to the house and came out with a gun in his hand and said to Eugene Tarlton; “You get in that wagon,” and Tarlton said, “If you will put that gun up I will whip you,” and Tarlton’s father said, “Come on Gene, this is not over.’’ That Tarlton had a wagon rod in his hand at the time, but he did not see him strike at defendant with it.

Two other witnesses for the state testified in substance to the same state of facts.

For the defense Mrs. N. E. Layman testified that she was seventy-two years old, mother of defendant, and he lived with her on her place three miles southwest of Shawnee and her grandson Clyde Layman and his wife lived directly across the road from her home; that she went over that morning to help her granddaughter quilt and left her dog chained to the porch; that she heard the dogs fighting and with her granddaughter went out to the road and asked the men to part the dogs; that Eugene Tarlton was standing with an iron rod about three feet long in his hand and she asked him to part the dogs and he said, “No let them fight.” That defendant, her son was at the barn harnessing the mules and she called for him and he came to her; that after some words Eugene Tarlton struck at her son with the iron rod and her son dodged the stroke and went in the house and when he came back they turned the dog loose. That Eugene Tarlton was swearing and threatened to whip her son and his father and two or three others were holding him and trying to get him to go back to their wagon, and about that time she fainted and fell.

' Mrs. Clyde Layman testified that Eugene Tarlton and some other person with him were hissing the dogs and encouraging them to fight and Eugene Tarlton had a long iron rod in his hand; that she did not see Tom Layman point the pistol.

As a witness in his own behalf the defendant Tom Layman testified that he was at his barn when he heard his mother scream; and he rushed out and saw his mother and his daughter-in-law standing in the yard and the dogs were fighting, that he tried to separate the dogs and Eugene- Tarlton said, “Let them fight,” and struck at him with an iron rod. That he then went into the house and got the pistol and when he came out they had the dogs parted and he took his dog and tied him, and while he was doing that his mother fell in a faint; that during this time Eugene Tarlton was cursing and wanting to fight him and dared him to come out on the road, saying that he could and would whip him, and his father and two or three others were holding him and trying to get him to go back to the wagon. That the .other persons were all strangers to him. That he did not at any time-point the pistol at Eugene Tarlton and did not point it at or toward any other person. That he went and got the pistol to protect himself from further assault and to protect his property.

The assignments of error are based upon exceptions taken to the instructions given and the refusal of the court to give certain requested instructions.

The charge of the court consisted of six instructions and the only issue submitted to the jury was whether or not defendant did point a pistol at the person of Eugene Tarlton as charged in the information. The instructions requested and refused were based upon that provision of our penal code providing that:

“To use or to attempt to offer to use force or violence upon or toward the person of another is not unlawful in the following cases:
First: _
Second: _
Third. When committed either by the party about to be injured, or by any other person in his aid or defense, in preventing or attempting to prevent an offense against his person, or any trespass or other unlawful interference with real or personal property in his lawful possession; provided the force or violence used is not more than sufficient to prevent such offense.”

Section 2342 Rev. Laws.

Under the evidence in this case we are clearly of the opinion that the court erred in refusing to instruct the jury upon the question of defendant’s right of self-defense. A defendant has the right to have the jury instructed on the law applicable to his defense if there is competent evidence reasonably, tending to establish that defense. The question presented is directly passed upon by this court in the case of Dickinson v. The State, 3rd Okla. Cr. 151, 104 Pac. 923.

For the refusal of the.court to instruct the jury upon the question of defendant’s right of self-defense, the judgment of conviction is reversed.

ARMSTRONG, J., concurs.


text:
    JOHN JONES v. STATE.
    No. A-2446.
    Opinion Filed April 29, 1916.
    (156 Pac. 1149.)
    INTOXICATING LIQUORS — Criminal Prosecution — Evidence. In a prosecution for selling intoxicating liquor, the evidence considered and held sufficient to ^sustain the verdict, and that no reversible error was committed on the trial.

      Appeal from County Court, Pawnee County; Geo. S. Merritt,- Jitdge.

    John Jones, convicted of violating the prohibitory law, appeals.
    Affirmed.

      McNeill & McNeill, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

On information filed in the County Court of Pawnee county, charging that John Jones did sell and deliver ,to Lee Daily one quart of beer, receiving therefor fifty cents, the plaintiff in error was convicted and his punishment fixed at confinement in the county jail for thirty days and a fine of three hundred dollars. From the judgment rendered on the verdict he appealed by filing in this court on April 21, 1915, a petition in error with case-made.

The evidence on behalf of the state was to the effect that Lee Daily, an Otoe Indian in company with Louis Rulo and Harry Saunders went to the Hillcrest hotel in the city of Pawnee where the defendant worked as porter and there Lee Daily paid the defendant a dollar and fifty cents for three bottles of beer; that later Lee Daily went to the National hotel distant about a block from the Hillcrest hotel and there obtained beer from the defendant. The state-also introduced in evidence over the objec-' tion of the defendant a certified copy of the U. S. internal revenue license issued to J. D. Jones, place Hillcrest hotel, Pawnee, payment $25.00, July 9, 1914. Retail liquor dealers’ license.

George Feaster, sheriff of Pawnee county testified that the defendant was the only person named Jones that lived at the Hillcrest hotel.

John Jones, the defendant, as a witness in his own 'behalf testified that he worked as porter at the Hillcrest hotel; that Dee Daily and Rulo came to the Hillcrest hotel that day and both were 'drunk; he denied that he ever sold any beer to Daily and denied that he was the owner of the federal liquor license; denied that he had anything whatever to do with the license; denied that he had ever paid for the same, or that he had ever authorized any one to take the license out in his name; that his name was plain John Jones, and not J. L. Jones. ,

The first error assigned is that the court erred in admitting in evidence the revenue license, because the same was not properly identified as having been issued to the defendant.

Obviously this assignment is without merit.

The second error assigned is that the court erred in permitting prejudicial questions to be asked of the defendant on his cross examination. The questions objected to related to the arrangement of the rooms and stairways in the Hillcrest hotel, and the further question as follows:

•“Q. Is it not a fact that while you were portering at that hotel that you kept beer in the basement and peddled it out of there? A. No.”

We discover no error in the rulings of the court upon the cross examination of the defendant.

We have carefully examined the record and do not find that it contains any error prejudicial to the rights of the defendant. Our conclusion is that the defendant had a fair trial, and was properly convicted. The judgment of conviction is therefore affimed.


text:
    JAMES BROWN v. STATE.
    No. A-2496.
    Opinion Filed May 15, 1916.
    (156 Pac. 1150.)
    EVIDENCE — Circumstantial Evidence — Sufficiency. “Where the evidence is wholly circumstantial, and thé facts and circumstances in evidence are of such a eharater as to fairly permit an inference consistent with innocence, it cannot he regarded as evidence sufficient to support a conviction.

      Appeal from County Court, Woods County; Gus Hadwrger, Judge.

    James Brown, convicted of a violation of the prohibitory law, appeals.
    Reversed.

      B. W. Snoddy and B. T. Wilson, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, James Brown was convicted on a charge that he did have the possession of about' two gallons of whisky with the wilful and unlawful intention to violate provisions of the enforcement act, and he was sentenced to be confined in the county jail for a period of sixty days and to pay a fine of two hundred and fifty dollars. From the judgment he appealed by filing in this court on June 24, 1915. a petition in error with case-made.

Numerous alleged errors are assigned upon exceptions to the instructions given and refused and it is insisted that the evidence is insufficient to support the verdict.

The testimony for the state was substantially as follows:

Walter Rambo, sheriff of Woods county testified that he saw Mr. Brown get out of a buggy with a package on his arm and go upstairs into a room, in the McHenry building; that he followed him and took the package from him and found that it was a carton containing a gallon of whisky; that he took the carton to the court house and took Mr. Brown along; that he secured a search warrant and went back to the room and found a gallon jug about half full of whisky; that he did not know the man that was sitting in the buggy. That the carton was addressed to and consigned to Clifton Fogle.

James Brown, the defendant, as a witness in his own behalf testified that he lived at Freedom, Woods county, and had resided there about twenty years; that about three months before the time the sheriff raided his room in the McHenry building he came to Alva for medical'treatment and during that time occupied said room; that one of his neighbors, Clifton Fogle came to Alva and stayed over night with him; that Fogle was a cripple and walked with a crutch; that Fogle had asked witness that day to carry an express package that he had received upstairs for him; that as he was carrying the cSrton upstairs he heard somebody following him and the sheriff appeared and took him and the carton to the court house; then they came back and the sheriff searched his room; that the half gallon of whisky he found there was purchased by witness at Kansas City and he had it there for, his own use; that he never did sell any intoxicating liquor and never had possession of whisky for any unlawful purpose.

E. L. Yearick; as a character witness testified that he lived about a mile and a half west of Freedom and had lived there fifteen years and is a county commissioner of Woods county; that he had known the defendant for fifteen years and knew his general reputation as to being an upright honest and law abiding citizen and that his reputation was good.

Witnesses .Gerlock, L. S. Gaskil, M. W. Benson, Charles Mont and S. Cummings qualified as character witnesses'- and testified that they lived near the town of Freedom; had known the defendant for from fifteen to twenty years and that his reputation as a law abiding citizen in the community where .he ■resided was good and had always been good.

The foregoing is a substantial statement of all the testimony taken upon the trial.

After a careful examination of the evidence, we think it is not sufficient to sustain the verdict of the jury and the judgment of the court. The inculpatory evidence was wholly circumstantial. The general rule in criminal case is that, where the evidence is wholly circumstantial, the facts shown must not only be consistent with and point to the guilt of the defendant, but must be inconsistent with his innocence. It is seldom that this court has deemed it to be its duty to reverse the action of the trial court in refusing to grant a‘new trial for the want of sufficient legal and competent evidence to sustain the verdict. When, however; it is manifest to this court that the verdict is clearly, contrary to the evidence, and that it is insufficient to sustain a conviction, we deem it our duty to reverse the judgment.

We are clearly of the opinion that in this case the evidence was insufficient to warrant the verdict of the jury. The judgment is therefore reversed.