author: DAVENPOBT, J.

text:
    WALTER KIBBE v. STATE.
    No. A-8556.
    Aug. 4, 1933.
    (24 Pac. [2d] 300.)

      C. B. Leedy, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPOBT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of burglary in the second degree, and was sentenced to be confined in the state penitentiary for a period of two- years, and appeals.

There is no conflict in the testimony, and the defendant does not urge the question of the insufficiency of the evidence. In his petition in error the defendant urges that his demurrer to the information should be sustained on the ground that the information does not state an offense of burglary in the second degree. Omitting the caption and the allegation as to the date and the county in which the offense was committed, the charging part of the information is as follows:

“That is to say the said defendant, Walter Kibbe, then and there being, in Ellis county, Oklahoma, did then and there unlawfully, willfully, wrongfully, burglarously and feloniously, in the night time, break and enter; into a certain frame building located on the southwest quarter of section 22, township 19 north, range 24 W. I. M. in Ellis county, Okla., said building being then and there in the possession and under the control of Fred Mier, by breaking open the outer door of said building, with the felonious and burglarous intent then and there, upon the part of the said defendant, to steal therein, by the said defendant then and there taking, stealing and carrying away, without the consent of the said Fred Mier, certain personal property of value, which property then and there belonged to the said Fred Mier, in said building so kept and contained, with the unlawful and felonious intent then and there, upon the part of said defendant, to deprive the said owner thereof permanently and to convert the same to his own use and benefit.”

To this information the defendant demurred, first, upon the ground that the information does not state facts sufficient to' constitute a public offense against the laws of this state; second, that more than one offense is attempted to be set forth in the same information; third, that the court has no jurisdiction of the person of the defendant or the subject-matter of the action. There is no merit in the second and third paragraphs of the demurrer, as the record clearly shows that there is but one offense attempted to be charged in the information, and the court had jurisdiction of both) the!person of the defendant and the subject-matter of the charge.

It is urged by the defendant that his demurrer should have been sustained on the ground that the information does not state facts sufficient to constitute a public offense. The sixth subdivision of section 2563; C. O. S. 1921, now section 2891, subd. 6, Okla. Stats. 1931, is as follows:

“That the act or omission charged as the offense is clearly and distinctly set forth in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended.”

Section 2561, C. O. S. 1921, now section 2889, Oklahoma Statutes 1931, reads as follows:

“The words used in an indictment or information must be construed in their usual acceptation, in common language, except words and phrases defined by law, which are to be construed according to their legal meaning.”

An information is sufficient which states facts clearly and distinctly, in ordinary and concise language, without repetition, and which, construed under the ordinary rules of construction of the English language, would enable a person of common understanding to know what was meant and to apprise the defendant of the exact nature of the offense with which he is charged, although the same does not contain all the phraseology and technical language ordinarily used in criminal pleadings.

In this case, the defendant in his brief finds fault with the grammatical construction of the information. While we are willing to admit that the pleader might have used a little more care and have drawn the information so as to have made it satisfactory to the defendant, yet we hold that the information stated facts sufficient to advise the defendant of the crime charged against him, and that any person could understand that the defendant in this case was charged with breaking into and entering a. building in the nighttime for the purpose of committing larceny and informed the defendant of the offense of which he was charged with such particularity as enabled him to prepare for his trial, and so defined and identified the offense that the defendant, if convicted or acquitted, would be able to defend himself in case he be indicted or an information filed against him again for the same offense by pleading the record of such former conviction or acquittal. Keasler v. State, 38 Okla. Cr. 255, 259 Pac. 1059; Reed v. State, 17 Okla. Cr. 662, 191 Pac. 1041; Coffelt v. State, 36 Okla. Or. 365, 254 Pac. 760; Whitfield v. State, 37 Okla. Cr. 37, 256 Pac. 68.

The information is sufficient, and the court did not err in overruling the defendant’s demurrer. No fundamental or prejudicial errors appearing in the record, the judgment of the trial court is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


source: Caselaw Access Project

author: EDWARDS, P. J.

license: Public Domain

text:
    FRANK BLAKE v. STATE.
    No. A-8566.
    Aug. 4, 1933.
    (24 Pac. [2d] 362.)
    Clifford W. Ferguson and Rizley & Sweet, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Texas county of having unlawful possession of mash fit for distillation, and was sentenced to pay a fine of $250 and to serve a term of 60 days in the county jail.

At the time charged, officers, with a search warrant, went to the premises of one Regier, a tenant on a farm belonging to defendant, made a search, and discovered six barrels of whisky mash. Defendant, Regier, and one Wilbite were jointly charged. Wilhite pleaded guilty, served the sentence imposed, and testified for the state. The state took a severance, and Regier was also used as a witness for the state. These two witnesses are accomplices, and clearly made out the state’s case. In addition, the wife of Regier testified in corroboration.

The only contention argued is that the wife of Regier is also an accomplice and that there is no sufficient corroboration of the accomplices.

Section 2701, C. O. S. 1921, section 3071, Okla. Stat. 1931, forbids the conviction of an accused upon testimony of an accomplice unless such testimony is corroborated by other evidence tending to connect the defendant with the commission of the offense charged. With this contention there is no dispute, and, if the wife of Regier is an accomplice, the conviction cannot stand.

The witness in substance testified that some days prior to the date at which the mash was discovered she saw defendant and Wilhite preparing the mash, that later defendant brought some yeast to the place and left it with her. There is nothing in the testimony that makes this witness an accomplice. It appears she knew the crime was committed, and stated she remonstrated with her husband, but this latter testimony was stricken. It does not appear that she willingly participated in the commission of the crime charged, or encouraged, abetted or aided in it.

The test as to whether one is an accomplice is whether his participation in the offense has been criminally corrupt. 16 C. J. 670, 671.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


author: DAVENPORT, J.

text:
    GORDON POLK v. STATE.
    No. A-8562.
    Aug. 4, 1933.
    (24 Pac. [2d] 1119.)
    Hughes & Hughes, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter in this opinion referred to as the defendant, was convicted of larceny of domestic fowls, and was sentenced to serve a term of two years in the State Reformatory at Granite, Okla., and appeals.

The testimony on behalf of the state shows that the defendant and E. S. Watkins were found in possession of a number of Rhode Island Red chickens, stolen from the chicken house of G. J. Nisle. The case was argued orally to the court by the attorneys for the plaintiff in error and the state. A careful consideration and examination of the record fails to disclose any fundamental or prejudicial errors sufficient to warrant a reversal. The evidence is sufficient to sustain the verdict of the jury.

The case is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


author: CHAPPELL, J.

text:
    MONROE HARRINGTON v. STATE.
    No. A-8533.
    Aug. 8, 1933.
    (24 Pac. [2d] 298.)

      A. C. Brewster, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Mayes county of the crime of perjury, and his punishment fixed by the jury at imprisonment in the state penitentiary for a period of one year.

The information charges in substance that a certain criminal case was pending in the district court of Mayes county against Frank Qualls and Everett Lowery on motion for a new trial; that defendant, after being duly sworn, willfully, corruptly, feloniously, falsely, and contrary- to such oath, testified that Jake Gage was a juror who sat in the trial of said cause; that a preliminary hearing was had of Qualls and Lowery before J. T. Hairston, a justice of the peace, and that Jake Gage was present at this preliminary; that Gage had said following the preliminary, in the presence of defendant and others, that “If he was lucky enough to get on the jury he would send those sons of bitches to- the penitentiary”; that said testimony was false and untrue; that Gage did not attend the preliminary hearing, and did not make such a statement at any time or place; that such evidence was material on the trial of the said motion for a new trial; that the evidence was false and known by defendant to be false when he gave it.

Counsel contend this information was so loosely drawn as to be indefinite and difficult to understand what it really charges, and is therefore not direct and certain as to' the offense.

Counsel cites no authority in support of this contention. The Attorney General, for the state, cites: Gray v. State, 4 Okla. Cr. 292, 111 Pac. 825, 32 L. R. A. (N. S.) 142; Miller v. State, 9 Okla. Cr. 196, 131 Pac. 181; Williams v. State, 14 Okla. Cr. 100, 167 Pac. 763; McCollum v. State, 52 Okla. Cr. 28, 2 Pac. (2d) 291, sustaining similar informations.

It is next contended the evidence is insufficient to support the verdict.

In the hearing on the motion for a new trial, defendant testified positively that juror Jake Gage was in the courtroom during the preliminary hearing; that he had known him two years; that he was able to identify him, and did point him out as being in the courtroom while the motion for new trial was being heard; that Gage did make the statement to him:

“If I am lucky enough to get on the jury that tries those two fellows I will send the sons of bitches to the penitentiary.”

When defendant was placed on trial, he sought to defend on the ground he was mistaken in the identity of Gage; that the man he saw was Sid King, and he was honestly mistaken in thinking Gage was in the courtroom and did make the statement.

Jake Gage testified defendant came to see him shortly before the trial and said:

“I done what I did through ignorance and was persuaded to do. They told, me it would not cause anybody any trouble; it would give these boys a new trial, and now I am in this I don’t want to suffer the punishment, and I want you to quit and not prosecute me.”

After hearing the evidence given by defendant on the motion for a new trial and that which he gave in his own defense in the case at bar, and that of Gage, the jury conld have no doubt that this was not a case of mistaken identity, but a case of willful prevarication.

Complaint is also made about the giving of certain instructions and the refusal to> give instructions requested by defendant.

No objection was made to any instruction given by the court. An examination of the instructions given discloses they fully and fairly cover the law of the case as applicable to the facts, and are as favorable to defendant as the facts require.

The evidence in the case being sufficient, the instructions fairly covering the law of the case, and no error appearing on the record prejudicial to the substantial rights of defendant, the cause is affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


author: PER CURIAM.

text:
    CLYDE B. SHORES v. STATE
    No. A-8534.
    Aug. 8, 1933.
    (24 Pac. [2d] 1118.)
    C. D. Peck, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Oklahoma county of larceny of an automobile, and was sentenced to' serve a term of ten years in the state penitentiary.

Judgment was entered in September, 1932, and the appeal was lodged in this court in March, 1933. No briefs in support of the appeal have been filed, and no appearance was made at the time the case was assigned for oral argument. The testimony sustains the judgment, and no fundamental error is made to appear.

The case is affirmed.


text:
    W. M. WARD, Jr., et al. v. STATE.
    No. A-8538.
    Aug. 11, 1933.

      (24 Pac. [2d] 358.)

      J. C. Daugherty, for plaintiffs in error.
    J. Berry King, Atty. Gen., and Smith O. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiffs in error, hereinafter referred to as the defendants, were convicted of assault with intent to kill J. O. Tucker and H. S. Fry, and appeal. This appeal is by transcript, and the only question raised is the question of the sufficiency of the allegations in the information, which information, omitting the caption, is as follows:

“Now comes E. E. Heyl the duly qualified and acting county attorney, in and for Washington county, state of Oklahoma, and gives the district court of Washington county, state of Oklahoma, to know and be informed that W. M. Ward, Jr., and Pete Harman did, in Washington county, andi in the state of Oklahoma, on or about the 19' day of August in the year of our Lord, one thousand nine hundred and thirty-two and anterior to the presentment hereof, commit the crime of shooting with the intent to kill in the manner and form as follows: That the said W. M. Ward, Jr., and Pete Harman, in the county and state aforesaid, on the day and year aforesaid, did, then and there, knowingly, willfully, unlawfully, feloniously and without justification or excusable cause and while they were then and there engaged in resisting the execution of legal process, to wit: A commitment to the county jail of Washington county, Oklahoma, issued by J. E. Hickey a justice of the peace, and while being transported to the county jail on said commitment by J. O. Tucker and H. S. Fry, make an assault in and upon J. O. Tucker and H. S. Fry with the hands of them, the said W. M. Ward, Jr., and Pete Harman, and with a certain weapon, to wit: A 44 calibre pistol hand and held in the hands of them, the said W. M. Ward, Jr., and Pete Harman, and did, then and there with the said pistol shoot, shoot at and attempt to shoot and kill them, the said J. C. Tucker and H. S. Fry, with the wrongful, unlawful and felonious intent then and there on the part of them, the said W. M. War’d, Jr., and Pete Harman, to kill the said J. C. Tncker and H. S. Fry.”

To the information the defendants, W. M. Ward, Jr., and Pete Harman each demurred; omitting the caption and signatures, the demurrer is' as follows:

“Said Pete Harman (W. M. Ward, Jr.) defendant herein, and demurs to the information herein filed against him, for the reason and cause that said information does not state or contain facts sufficient to charge the offense of an assault with intent to kill, or any offense against the laws of the state of Oklahoma.”

Section 2948, Okla. Stat. 1931, among other things in the third and fourth paragraphs, reads as follows:

“Third. That more than one offense is charged in the indictment or information.
“Fourth. That the facts stated do not constitute a public offense.”

Section 2949, Okla. Statutes 1931, reads as follows:

“The demurrer must be in writing, signed either by the defendant or his counsel, and filed. It must distinctly specify the grounds of the objection to the indictment or information, or it must be disregarded.”

The information in this case charges an offense of assault with intent to kill, which is an offense against the laws of the state of Oklahoma, and the demurrer of the plaintiffs on the grounds set forth in the demurrer was properly overruled. The defendants did not demur to the information on the ground that it was duplicitous; the only ground being that it did not state facts sufficient to charge the offense of assault with intent to kill, or any other offense against the laws of the state of Oklahoma. If the defendants relied upon the information being duplicitous, their demurrer should have distinctly specified the grounds of the objection to the information. Failure to so state in the demurrer operated as a waiver. Hagerty v. State, 22 Okla. Cr. 136, 210 Pac. 300.

The transcript shows that, when the first witness was called by the state and had given some testimony, the defendants objected “to any testimony for the reason that the information is too indefinite and uncertain to charge an offense, or to apprise said defendants, or either of them, of the specific offense they were required to defend,” which objection was overruled and exceptions saved. The court properly overruled the objection of the defendants, for the reason that the information is sufficient to charge the defendants with an assault with intent to kill.

Finding no error in the transcript sufficient to warrant a reversal, the judgment of the trial court is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


text:
    CHARLEY DUMAS v. STATE.
    No. A-8575.
    Aug. 11, 1933.
    (24 Pac. [2d] 359.)

      Denver N. Davison, E. Moore, and Dennis H. Petty, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Coal county of rape in the first degree and his punishment fixed at death. The information was filed September 14, 1932, on which date defendant was arraigned in the district court, entered a plea of guilty, and was sentenced to death. Prom this judgment appeal was taken to this court and the judgment was reversed. 54 Okla. Cr. 207, 16 Pac. (2d) 886. Defendant then entered a plea of not guilty and trial had, which resulted in the judgment from which this appeal is taken.

The evidence discloses that defendant, a negro, at the time charged by force and in a most brutal manner, assaulted, seriously injured, and ravished a young white 'girl sixteen years of age. We deem it unnecessary to make) a more extended statement of the facts.

The first contention made is that the court erred in overruling defendant’s motion to quash the jury panel. The motion was made orally just before the jury was impaneled, and is:

“By Mr. Moore, of counsel for defendant: Comes now the defendant, Charley Dumas, and objects to going to trial with the jury for the reason that the entire panel has not been drawn from the jury box, as provided by law, and for the further reason that if it is shown that the jury was drawn, the names drawn from the jury box, that at the same time they were notified to be present for jury service they were also, informed by letter that there were no funds with which to pay them, and if they served as jurors at this time, or this term of the court, such service would be without compensation; that of the names drawn from the jury box that only a small per cent, of those gentlemen are present for jury service, and those who are here appear voluntarily without pay. We offer this copy of a letter in evidence as being one that was sent out when the jury was drawn and notified to be present for jury service.”

Sections 2980-2982, Okla. Stat. 1931, are the applicable statutes. This court has frequently held the motion to quash must be in writing, setting out clearly the facts constituting the ground of challenge. Wilson v. State, 17 Okla. Cr. 47, 183 Pac. 613; Watkins v. State, 49 Okla. Cr. 443, 295 Pac. 417. It does not appear from the oral motion that the jurors were not summoned as provided by statute. The complaint is stressed that the letter by the district judge, which accompanied the summons, constitutes error. This letter is in general terms, it has ho reference to any particular case, but states to the prospective jurors that the county is without funds and if the jurors serve it must be without pay, and leaves the matter of service to the juror’s option. We fail to see how it could affect the qualifications of the juror. If this procedure is claimed prejudicial, this should have been shown on voir dire, followed by a challenge to the individual juror. The law was substantially followed. Section 808, Okla. Stat. 1981; Wadsworth v. State, 9 Okla. Cr. 84, 130 Pac. 808; Weathers v. State, 35 Okla. Cr. 292, 250 Pac. 805.

Next is argued the court erred in admitting in evidence the confession of defendant. Defendant insists there was no showing of the voluntary character of the confession. Defendant testified, and either denied the statement attributed to* him or claimed the statements were made by reason of threats or promises and were not voluntary and that a statement made to* a deputy warden at the penitentiary was under a promise of the deputy warden that if he would tell the truth he would stay with him and see he did not get over twenty-five years. A confession to be admissible must be voluntary; and if made under a promise of benefit or threat of harm by one having him in custody or one having authority over him, it is deemed involuntary. The admissibility of a confession, in the first instance, is a question for the court. Its admissibility is to be determined preliminary to* allowing it to go to the jury. It is settled by many authorities that the burden is on a defendant to show a confession was procured by such means or under such circumstances as to render it involuntary. In the absence of any such showing by the evidence for the state or for the defendant, it is deemed voluntary. The claim of defendant that his confession was made under promise or threats was refuted by the officers connected with his custody and incarceration. In case of conflict as to the voluntary character of a confession the ruling of the court admitting the evidence is not error. The question of the admissibility of a confession was analyzed and discussed at length, and numerous authorities cited in Mays v. State, 19 Okla. Cr. 102, 197 Pac. 1064.

In this connection it is urged the confession was not competent for the reason it contained the admission of a prior conviction of defendant, citing 16 C. J. pp. 583, 586, 608, 638.

Since defendant was a member of a crew of convicts from the state penitentiary, doing work at a prison highway camp and later in his own behalf took the stand and admitted he had twice been convicted of violations prior to the trial in the instant case, the evidence of prior convictions was without prejudice. Teague v. State, 13 Okla. Cr. 270, 163 Pac. 954; Pate v. State, 15 Okla. Or. 90, 175 Pac. 122. No objection to this testimony was made at the time it was offered.

It is further argued that there was error in admitting the testimony of the physician who attended the injured girl, as stating a conclusion. The physician testified of making the examination, and in substance testified that the private organs of the witness had been penetrated. He did not testify as to the manner of the penetration. This was testified to only by the prosecuting witness herself. No objection was made to the testimony of this witness at the time, and it was repeated and particularly brought out on cross-examination by defendant’s counsel. It is also argued that permitting the prosecuting witness to testify she identified defendant by his voice, without first showing that she was familiar with his voice, is error. The witness testified she identified defendant by his voice, his appearance, and that he had a mark where she bit him in response when she¡ saw him the next morning. This evidence also was admitted without objection. If there was any error in its admission it was inconsequential.

Complaint is also made that the regular district judge took part in the prosecution. So far as the record, or any claim, made, shows, the only connection of the regular judge with the case was that he was called as a witness! as to the voluntary character of the confession made by defendant. No objection to his testimony was made, but at the conclusion a motion to strike the testimony was interposed for the reason that former proceedings were taken by the reporter and were a matter of record. The voluntary character of this confession was challenged, and the state was not to be precluded from showing that the statement of defendant was voluntarily made. This court is thoroughly committed to the rule that a judge will not be permitted to take part in the prosecution of a defendant and it is materially prejudicial to permit him to do so. Lilly v. State, 7 Okla. Cr. 284, 123 Pac. 575, Ann. Cas. 1914B, 443; Roddie v. State, 19 Okla. Cr. 63, 198 Pac. 342; Knight v. State, 49 Okla. Cr. 123, 295 Pac. 409. The record itself, however, does not show a participation in the prosecution by the regular district judge.

Several other assignments of error are argued to some extent in the briefs, and while not discussed, none have been overlooked, and all have had the consideration of the court.

Upon the consideration of the entire case, we have no doubt of the guilt of defendant, and that he had a fair and impartial trial; that the death penalty is fully justified under the evidence.

The case is affirmed.

The original time for the execution having passed, owing to the pendency of this appeal, it is considered, ordered, and adjudged by this court that the judgment and sentence of the district court of Coal county be carried out by electrocution of the defendant on the 20th day of October, 1933.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    GEORGE COWAN v. STATE.
    No. A-8548.
    Aug. 11, 1933.
    (24 Pac. [2d] 362.)
    J. P. Wishard, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith O. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted upon a charge of grand larceny and sentenced to serve a term of three years in the state penitentiary, and appeals.

The testimony on behalf of the state shows that the prosecuting witness, Joseph Matli, owned certain personal property, consisting of one buzz saw frame with two biades, four automobile tires with complete rims and tubes, one Exide auto battery, one drive belt, two axes, one shovel, one hammer, and five wrenches; that the property was located near the home of the prosecuting witness, Matli; and' that on or about the 15th day of March, 1931, the property mentioned herein disappeared. Thereafter the witness Matli began to search for the property and found the track of a truck leading from where the property was taken to where it was found. They claim the tracks of the truck showed the same kind of casings that were on a truck belonging to the defendant when they went to the defendant’s home. There is some testimony on behalf of the state indicating that the property was found upon a tract of land the defendant had leased a short distance from his home.

The defendant’s defense is an alibi that he had nothing to do with the taking of the property, did not know it was taken, and had no' knowledge as to where the property had been placed. The defendant’s testimony shows that he had resided in the same neighborhood in which he was living for several years; that hei went to a neighbor’s house the night it is alleged the property Avas taken and remained there until after 12 o’clock at night, then returned to his home in company with his family and his brother, and remained at home until morning; that about 5 o’clock the next morning some parties came by and aroused him to get gasoline. The defendant’s testimony further shows that on Monday, the 16th of March, 1931, a Diamond tread casing Avas placed on one of the rear wheels of his truck, and that it did not have a Diamond! tread casing on it the night the property was taken. Several witnesses were called who testified to the former good character of the defendant.

The defendant has assigned several errors alleged to have been committed by the court in the trial of his case. In this case the record discloses that the testimony is all circumstantial and not very strong. To warrant a conviction upon circumstantial evidence, each fact necessary to the conclusion sought to be established — that is, the guilt of the defendant — must be proved by competent evidence beyond a reasonable doubt, and all the facts and circumstances proven should not only be consistent with the guilt of the accused, but consistent with each other and inconsistent with any other reasonable hypothesis or conclusions than that of his guilt, and sufficient to produce in the minds of the jurors the reasonable moral certainty that the accused committed the offense charged against him.

The jury found the facts against the defendant, and, after a careful examination of the record, the court holds there is sufficient testimony to sustain a conviction; but, after considering the facts and circumstances as disclosed by the record, we believe the penalty imposed is excessive and that the ends of justice would be properly met by a modification of the sentence from three years to one year in the state penitentiary, and, as modified, the judgment should be affirmed. There are no errors in the record rpossessing sufficient merit to warrant a reversal.

Judgment affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


text:
    Ex parte CHARLEY HOLDEN.
    No. A-8615.
    Oct. 20, 1933.
    (24 Pac. [2d] 665.)

      Joe Ad won, for petitioner.
    Lewis Morris, Co. Atty., for respondent.
   CHAPPELL, J.

This is an original proceeding in this court'(for a writ of habeas corpus for reduction of bail. The petition was filed on the 14th day of August, 1933. An order to show cause was issued to Stanley Rogers, sheriff, returnable on the 15th day of August, 1933, service of said order to show cause being acknowledged and accepted by respondent.

The petitioner alleges that he is unlawfully imprisoned at Oklahoma City, in Oklahoma county, by Stanley Rogers, sheriff of said county; that petitioner has been charged with carrying concealed weapons; that his bail is fixed at the excessive and unreasonable amount of $2,000. Petitioner asks this court to reduce the amount of said bail and permit his release upon the making of the same.

Respondent answered that he was holding petitioner in custody upon a commitment issued from the common pleas court of Oklahoma county; that bail bond had been set in said case at the sum of $2,000 by the judge of said court; that petitioner had not executed and had approved said bail. Respondent further shows to the court that the judge of the common pleas court in setting said appearance bond took into' consideration the character and past record of petitioner, which shows that he had heretofore been convicted of manslaughter in the first degree in the killing (of a peace officer; that later he pleaded guilty to the killing" of another peace officer; that he had served a term in the federal penitentiary for the possession of narcotics, and that, since his release from the penitentiary, within the past three months, he has been convicted in the justice court of this county of carrying concealed weapons; that, in view of the above and foregoing facts, respondent denies that the action of the common pleas court in fixing said bond in the sum of $2,000 is excessive and in violation of the Constitution and laws of this state.

The Criminal Court of Appeals will not grant a reduction of bail, unless it clearly appears that the amount fixed by the trial court is excessive and clearly disproportionate to the offense involved. Ex parte McClellan, 1 Okla. Cr. 299, 97 Pac. 1019.

Article 2, § 9, of the Constitution, provides;

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishments inflicted.”

The only question, therefore, to be determined is whether the bond of $2,000 in the instant case is excessive.

In fixing the amount of bail, the magistrate should take into consideration the nature of the crime charged and its punishment, and may also consider the character of the accused and his means and standing. 6 C. J. page 960, § 178; People v. Smith, 1 Cal. 9; State v. Burrows, Kirby (Conn.) 259; Ex parte Alexander, 59 Mo. 598, 21 Am. Rep. 393; State v. Rockafellow, 6 N. J. Law, 332; People v. Cunningham, 3 Parker Cr. R. (N. Y.) 520; People v. Dixon, 4 Parker Cr. R. (N. Y.) 651; People v. Goodwin, 1 Wheeler Cr. Cas. (N. Y.) 443.

This rule finds support in several leading English cases.

In Re Jacobs, 4 Okla. Or. 346, 111 Pac. 815, this court said:

“The mere fact that a defendant cannot make bond in a; certain sum does not necessarily make said sum excessive. Regard must be had to' the nature of the crime alleged to have been committed, and the chaacter of the testimony by which it is supported.”

The object of imprisonment for failure to give bail previous to trial is not punishment, but the security of the person of the alleged defendant to' await the judgment of the law. In ordinary cases this object is supposed to be attainable by the execution of sufficient and reasonable bail.

In ordinary cases the carrying of concealed weapons by persons without previous criminal record and without having: exhibited a criminal tendency to’ use such ‘weapons, a $2,000 bail would be excessive and should be reduced by this court. No set rule; can be fixed as to the amount of bail in any particular case, but each case must stand upon the facts surrounding that particular case.

In the case at bar, considering, the long criminal record of petitioner and his disposition, as shown by the past, to use these weapons, places his case outside of the ordinary offense of carrying concealed weapons and justifies the magistrate, under all the facts in the case, in fixing the bail, as he did, at the sum of $2,000.

For the reasons stated, the writ is denied.

EDWARDS, P. J., and DAVENPORT, J., concur.


text:
    WILLIAM JOHNSON v. STATE.
    No. A-8592.
    Sept. 8, 1933.
    (24 Pac. [2d] 1018.)
    Twine & Twine, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith O. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of murder and his punishment fixed at death, and appeals.

The evidence on behalf of the state shows that on the evening of December 27, 1932, Mary Wolfenberger, a woman of mature years; closed her store in the city of Muskogee about 6 o’clock or shortly thereafter, and walked west on Broadway to Ninth street, with a lady by the name of Virginia Samuels; Miss Wolfenberger went west on the north side of Broadway; Miss Joanna Locke, who was acquainted with Miss Wolfenberger, passed her between Thirteenth and Fourteenth streets shortly after dark.

The state’s evidence further disclosed that Miss Wolfenberger lived at 2616 West Okmulgee avenue, and that she frequently walked from her place of business to her home. The testimony further discloses that there is situated between Fifteenth and Sixteenth streets, on the north side of Broadway, what is known as the West High School; back of the school building, which is on the northwest comer of Fifteenth and Broadway, is the administration building, which opens on Broadway; there is a path from the sidewalk off north Broadway between the school building and the administration building.

It is further shown that on the morning of the 28th of December, 1932, the body of Miss Wolfenberger was found by J. W. Booth up the pathway running north from Broadway; Miss Wolfenberger had been assaulted and beaten with a hammer. The assault took place close to the gymnasium entrance, on the sidewalk, and her remains had been dragged up the pathway some distance where the body was found by Mr. Booth. The body was lying with the head to the east, an arm was pulled out of the coat sleeve, and a portion of the coat pulled up over the face of deceased; the lower part of her clothing was disarranged, her dress was left pulled up between her knees and hips. There were several wounds about the face and on the front part of the head of the deceased; spots of hlood were found on the sidewalk close to the gymnasium entrance; the purse and one glove of the deceased were picked up near the entrance to the pathway between the two buildings.

The ground along the pathway showed deceased had been dragged from the sidewalk, and north to where the body was found; the shoes of the deceased were found lying some few feet apart. The condition of the body and clothing indicated that she had been criminally assaulted after having, been dragged from the sidewalk.

The record further shows that, some time after the body of the deceased was found, the officers began to make an investigation and arrested the defendant William Johnson. The officers then made a search of the home where defendant lived, and under the stairway in the house found a great deal of property that had been stolen, and with this property found the following letter :

“Muskogee, Oklahoma. l-27-’33.
“Dear Cousin: Thi$ leaves all well hope to find you well and doing good. We had a letter from Grandpa and he |s sick (in bed so you know about how Ma is the reason I am writing you. If you will send me a $1.50 I will send you a loti of good things. If I thought I could get a job I would come and stay a while. Tell Y. K. if he could) get me a job I will come and' stay with you all be-< cause things is getting hot up here since a white woman got killed so you know about how we feel. Of course they aint found nobody that knows anything about it yet so- if you can do' that and I will try and see you all sometime soon. Yours as ever
“Son Johnson, 208 Kinsley Street,
“Muskogee, Okla.”

The record further discloses that after the defendant was arrested he made a confession, which was freely and voluntarily given without any promise or hope of reward, and that every precaution was taken to see that no' un-i fair advantage was taken of the defendant. The defendant made a verbal confession, which was reduced to writing in the form of questions and answers, in the presence of John Wolsey, Ben Bolton, and the county attorney. In the confession the defendant says he met the deceased about where the south door of the gymnasium comes to the street; that he beat her up with a hammer and dragged her around back of the building; that he laid her down on her back with her head toward the street and ravished her; that he could not say exactly what time it was, but it was just after dark; had the hammer to cut a lock or something; “could not say exactly where I hit her but it was on the head.”

The evidence on behalf of the state, including the confession of the defendant, which it is not deemed necessary to set out in full, clearly shows that the defendant is guilty of the crime charged against him.

Several errors have been assigned by the defendant as grounds for reversing this case. The first error assigned is that the court erred in overruling the motion of the defendant for a change of venue. The granting of a change of venue is made discretionary with the court, and the appellate court Avill not reverse the ruling of the trial court denying the application for a change of venue unless it is made to clearly appear that there has been such an abuse of discretion as to amount to practically a denial of justice. Johnson v. State, 20 Okla. Cr. 196, 201 Pac. 1006; Goss v. State, 24 Okla. Cr. 383, 218 Pac. 339; Wright v. State, 12 Okla. Cr. 443, 158 Pac. 290, 291; Maddox v. State, 12 Okla. Cr. 462, 158 Pac. 883; Leard v. State, 30 Okla. Cr. 191, 235 Pac. 243.

The court did not err in denying the defendant a change of venue.

It is next urged by the defendant) that his motion for a continuance should have been granted on the ground of the illness of W. H. Twine, one of the attorneys whoi had been appointed to assist in his defense. In Hunt v. State, 38 Okla. Cr. 294, 260 Pac. 512, in the third paragraph of the syllabus, this court said:

“An application for continuance on account of the absence of leading counsel is properly denied where a defendant is duly represented by his other counsel.”

In this case the record shows that the defendant was not only fully represented, hut was ably represented by the counsel who defended him; that the counsel protected his interest during, the entire progress of the trial, and the court did not err in overruling defendant’s motion for a continuance. Anderson v. State, 21 Okla. Cr. 193, 207 Pac. 977; Coffey v. State, 38 Okla. Or. 94, 258 Pac. 923.

The testimony in this case shows conclusively that the confession of the defendant was freely and voluntarily made, and this court has repeatedly held that, where it is proven that the confession of the defendant is freely and voluntarily made, it is competent evidence against him. Shires v. State, 2 Okla. Cr. 89, 99 Pac. 1100; Holmes v. State, 6 Okla. Cr. 541, 119 Pac. 430, 120 Pac. 300; Tarkington v. State, 41 Okla. Cr. 423, 273 Pac. 1015.

The court did not commit reversible error in admitting the confession, of the defendant. The record in this case shows a cold-blooded brutal murder was committed. The defendant was accorded a fair and impartial trial. No fundamental or prejudicial errors- appearing in the record sufficient to warrant a reversal, the judgment is affirmed.

The original date for the execution having passed, owing to- the pending of the appeal, it is considered, or-! dered, and adjudged by this court that the judgment and sentence of the district court of Muskogee county be carried out by the electrocution of the defendant on Friday, November 10, 1933.

EDWARDS, P. J., and CHAPPELL, J., concur.


text:
    EARL A. STAMBAUGH v. STATE.
    No. A-8558.
    Sept. 15, 1933.
    (25 Pac. [2d] 1016.)
    David Tant and H. M. Shirley, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Oklahoma county of receiving stolen property, and his punishment fixed at a term of one year in the state penitentiary.

The appeal is by transcript. Judgment was rendered on October 4, 1932, and the- appeal was lodged in this court on April 3, 1933. No briefs in support of the appeal have been filed.

No reason to interfere with the judgment appears.

The case is affirmed.


text:
    BLUE RIGSBY v. STATE.
    No. A-8549.
    Sept. 8, 1933.
    Rehearing Denied Sept. 15, 1933.
    (24 Rao. [2d] 1016.)

      A. M. deGraffenried and Kelly Brown, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Mayes county of the crime of murder, and his punishment fixed by the jury at imprisonment for life in the state penitentiary.

Defendant was charged by information jointly with Elizabeth Barcus and John Doe with having murdered one George W. Barcus, the husband of Elizabeth Barcus, on or about the 12th day of December, 1931.

It appears from the record that Barcus and his wife had been living in the city of Muskogee; that defendant also lived there and was engaged in the real estate business; that defendant had been going frequently to the Barcus home for several months before the homicide — sometimes when Barcus was not there. All the circumstances of the case indicate that defendant and Mrs. Barcus had become intimate.

That on the 11th day of December, 1931, Mrs. Barcus went to the post office in Muskogee and withdrew their postal account in the sum of $800, which was the entire amount they had on deposit; that on the same day Barcus executed,a deed to 17 acres of land and a bill of sale toi the household goods and automobile to his wife, the making of which was procured by defendant, and paid over to defendant the entire $800 and took his receipt therefor; that on the 11th day of December, 1931, defendant spent the night at the Barcus home; that some of the neighbors heard an argument in the house, loud talking, and evident anger on, the part of Mrs. Barcus; that defendant and Barcus left the house together early on the morning of December 12th, the day of the homicide; that after leaving the house defendant made arrangements with a transfer company to move the Barcus household goods to' Siloam Springs, Ark., and, meeting Mrs. Barcus at the transfer office, paid the transfer company for such moving; that in the afternoon defendant and Barcus went out to Barcus’ home to see if the goods were all taken; that at about 7 o’clock in the evening defendant and Barcus were seen together; that defendant was the owner of a blue or green Buick town sedan, having a Muskogee sign and a horseshoe on the radiator, with a trunk and spare tire with a tail-light in the center on the back; that this make of car was particularly distinctive because of these marks and the fact that there were few of that kind of car in that particular neighborhood; that about 9 o’clock in the evening certain officers were going from Muskogee to Vinita and passed this car standing at the side of the road, near the town of Pryor; that one man was in the car and two outside, one man being about the size and description of defendant; that this car was also seen in the town of Pryor just prior to this time and being occupied by three men; that they stopped and got something to eat and drove out of town; that later in the evening thel dead body of Barcus was found beside the road, some distance from Pryor; that there was a number of wounds! on his head, made with a sharp instrument which had broken the skull and penetrated the brain; that upon investigation the officers found a place up the road about a quarter of a mile where the murder had apparently been committed ; that a car having diamond tread casings had turned around there; that the defendant’s car had that kind of casings; that, when defendant was arrested the next day, he had in Ms possession $765.37, which he toM the officers he had received from the sale of real estate; that after the preliminary defendant made bond and continued to visit Mrs. Barcus at her apartment and had possession of and drove the Barcus automobile; that defendant and Mrs. Barcus executed a joint receipt and received the $765.37 from the sheriff of Mayes county.

The defense was an alibi.

Defendant, testifying for himself, admitted he had received the $800 from Barcus and his wife; that he caused to be executed the deed and bill of sale and paid for the removal of Mrs. Barcus’ goods to Siloam Springs, but denied all other things proven by the state.

Defendant contends this evidence is insufficient to support the verdict of the jury:

First, because, when the record is considered as a whole, the evidence fails to establish the guilt of defendant beyond a reasonable doubt.

With this we cannot agree. The state established a motive for the homicide by proof of the illicit relationship between defendant and Mrs. Barcus; that defendant was with deceased the last time he was seen alive; that his car was at the scene of the homicide, and that he was also there and seen in company with a man who answered the description of deceased; that defendant was in possession of all of deceased’s cash and had procured deceased to dispose of all of his real and personal property to Mrs. Barcus, which, taken together with all the other facts and circumstances in the case, conclusively points to the guilt of defendant.

Under this assignment it is further contended the evidence is insufficient because the witness Firestone, who testified for the state, made an affidavit in support of the motion for a new trial repudiating and contradicting his testimony given at the trial, wherein he identified defendant and his car as being in Pryor on the night of the, homicide, at about 9 o’clock, and in which affidavit he swore that the car he saw was not defendant’s car, and that he was mistaken in saying defendant was one of- the men seen -at the car at that time.

The only possible effect of this action on the part of Firestone would have been to make him an unavailable witness for the state. Defendant could not have used any such negative testimony in his own behalf. Firestone’s affidavit in support of the motion for a new trial was only contradictory of himself when he testified under oath at the trial of the case.

An examination of the record discloses other witnesses besides Firestone testified to substantially the same state of facts that he did at the trial. It is apparent, therefore, that no different result would have ensued had the state never called Firestone as a witness.

It has been held that the making of such an affidavit does not require the granting of a new trial. Carmichael v. State, 111 Ga. 653, 36 S. E. 872; Collins v. State, 124 Ga. 788, 53 S. E. 193; People v. Cameron, 180 N. Y. 557, 73 N. E. 1129; Shackelford v. State (Tex. Cr. App.) 53 S. W. 884; Ryal v. State, 16 Okla. Cr. 266, 182 Pac. 253; Yoder v. State, 18 Okla. Cr. 637, 197 Pac. 848; Martin v. State, 34 Okla. Cr. 274, 216 Pac. 647, 648.

This court in numerous cases has said: Where a conviction rests upon circumstantial evidence, and circumstances are proven from which the reasonable and logical inference of guilt clearly arises, and which excludes any reasonable hypothesis except the guilt of the accused, although the evidence is conflicting, this court will not disturb the verdict for insufficiency of the evidence.

It is next contended the court erred in overruling the amended motion for a new trial on the ground of newly discovered evidence.

In this contention it is contended the affidavit of Firestone constituted newly discovered evidence.

Counsel cite no authorities, and we have been unable to find, where any court has ever held such an affidavit to be neivly discovered evidence. As was said in Martin v. State, supra:

“It would be a dangerous rule to allow, generally, a conviction to- be overturned by the ex parte affidavit "of a witness that he committed perjury in the trial of the case. * * If the filing of such an affidavit were generally recognized as a sufficient ground for a new trial as newly discovered evidence, we should see convicted criminals pursuing witnesses who had testified against them endeavoring to procure affidavits impeaching, their own testimony.”

It is further contended under this assignment the court erred in overruling the motion for a new trial on the ground of newly discovered evidence which was supported by the affidavit of John Roy and Albert Roy.

Their testimony, if believed by the jury, would merely show they saw deceased on the streets of Muskogee, about 7:30 p. m. December 12th, on which date he was later murdered about a mile north of Pryor, about 10:30. This testimony, if believed by the jury, would have tended to corroborate the state’s evidence, because it was about that hour the state proved deceased to be in the company of defendant. It is apparent that snch testimony would not likely change the result, since there was ample time for defendant and deceased to reach the place of the homicide after 7:30.

It is next contended the trial court erred to the prejudice of defendant in not having him present at the time of the hearing on the motion for a new trial on the ground of newly discovered evidence.

The appellate courts of Oklahoma have repeatedly held the presence of defendant is not required on the hearing of a motion for a new trial. Ward v. Terr., 8 Okla. 12, 56 Pac. 704; Arnold v. State, 48 Okla. Cr. 452, 132 Pac. 1123; Henry v. State, 10 Okla, Cr. 369, 136 Pac. 982, 52 L. R. A. (N. S.) 113.

The authorities above cited are conclusive on this question. It is not necessary for a defendant to be present in court at the trial, except from the beginning of the impaneling of the jury until the verdict is recorded and the jury finally discharged. Motions for change of venue, for a new trial, in arrest of judgment, and proceedings of that character, not being a part of the trial proper, the presence of defendant is not required.

The evidence being sufficient to support the verdict of the jury and no substantial error appearing in the record, the cause is affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


text:
    JOHN CUNNINGHAM v. STATE.
    No. A-8537.
    Sept. 8, 1933.
    (24 Pac. [2d] 1013.)

      Jack Bradley, and Claud Briggs, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Latimer county of rape in the first degree, and was sentenced to serve a term of fifteen years in the state penitentiary. That part of the information defining and charging the offense is:

“* * * That is to say that he the said defendant, John Cunningham, being then and there a male person over the age of 18 years, did within said Latimer county and State of Oklahoma, on or about the aforesaid date, March 24th, 1932, willfully, wrongfully and feloniously have and accomplish an act of sexual intercourse with one Bernice Small, while she the said Bernice Small was under the influence of intoxicating liquor administered by the said defendant and was thereby prevented from resisting the said unlawful act of intercourse by the defendant, and that by reason of the temporary unsoundness of the mind of the said Bernice Small, caused by the influence of the intoxicating liquor administered to her by the said defendant as aforesaid, she the said Bernice Small was then and there incapable of giving, legal consent to said act of intercourse, she the said Bernice Small being a female person and not the wife of him the said John Cunningham, all of which was with the unlawful and felonious intent upon the part of said defendant to commit the crime of rape in the first degree. * *

The state sufficiently supports the charge by proof that defendant either personally or in privity with another furnished intoxicating liquor to the prosecutrix from which she became intoxicated, and while in such state of intoxication the act of sexual intercourse was accomplished. The court limited the offense as charged in instructions 4, 5, 6, and 7, as follows:

“No 4. Now, in this case, if you find and believe from the evidence, beyond a reasonable doubt, that the defendant, John Cunningham, did in Latimer county, Okla., on or about the 24th day of March, 1932, he being then and there a male person over the age of 18 years, willfully, wrongfully, unlawfully and feloniously have and accomplish an act of sexual intercourse with one Bernice Small, while she was under the influence of intoxicating liquor administered by the said defendant and was thereby prevented from resisting the said unlawful act of intercourse by the defendant, and that by reason of the temporary unsoundness of the mind of the said Bernice Small, caused by the influence of intoxicating liquor administered to her by the said defendant as aforesaid, she, the said Bernice Small being a female person and not the wife of the said John Cunningham, all of which was with the unlawful and felonious intent upon the part of said defendant to commit the crime of rape in the first degree, as charged in the information herein, then and in that event you will find the defendant guilty of the crime charged.
“No. 5. If you find the defendant guilty of the crime charged, you may assess his punishment at death, or imprisonment in the state penitentiary for any period of time not less than 15 years.
“If you find the defendant guilty of rape in the first degree, as charged in the information and as herein defined to you, but you cannot agree upon the punishment to be inflicted upon him, then you may state in your verdict that you find the defendant guilty of rape in the first degree, as charged in the information, but that you cannot agree on the punishment, and that you request the court to fix or assess the punishment.
“No. 6. The offense charged herein is that of rape in the first degree, and the age of the female is immaterial and should not be considered by you in determining the guilt or innocence of this defendant, as under the law of this state an act of sexual intercourse accomplished with any female by force, whether physical or by use of drugs or intoxicating liquor sufficient to' overcome the resistance of the female, is rape in the first degree.
“No 7. You are instructed that under the charge contained in the information herein the state has alleged, and before you can convict the defendant, you must find beyond a reasonable doubt, that the prosecutrix, Bernice Small, was so under the influence of intoxicating, liquor, administered by or with the privity of the defendant, that she was thereby prevented from successfully resisting the defendant, and that as a result of her state of intoxication and temporary unsoundness of mind, the defendant was able to and did accomplish an act of sexual intercourse with the said prosecutrix, Bernice Small, against her will.”

The verdict finds' defendant guilty as charged, and assesses the minimum punishment for rape in the first degree of 15 years.

Rape is defined and divided into degrees by sections 2515 and 2518, Oída. St. 1931, which sections read:

Section 2515:

“Rape is an act of sexual intercourse accomplished with a female, not the wife of the perpetrator, under either of the following circumstances:
“First. Where the female is under the age of 16 years.
“Second. Where the female is over the age of 16 years and under the age of 18, and of previous chaste and virtuous character.
“Third. Where she is incapable through lunacy or any other unsoundness of mind, whether temporary or permanent, of giving legal consent.
“Fourth. Where she resists but her resistance is overcome by force and violence.
“Fifth. Where she is prevented from resistance by threats of immediate and great bodily harm, accompanied by apparent power of execution.
“Sixth. Where she is prevented from resisting by any intoxicating, narcotic, or anesthetic agent, administered by or with the privity of the accused.
“Seventh. Where she is at the time unconscious of the nature of the act and this is known to the accused.
“Eighth. Where she submits under a belief that the person committing the act is her husband, and this belief is induced by artifice, pretence or concealment practiced by the accused, or by the accused in collusion with her husband with intent to induce such belief. And in all cases of collusion between the accused and the husband of the female, to' accomplish such act, both the husband and the accused shall be deemed guilty of rape.”

Section 2518:

“Rape committed by a male over 18 years of age upon a female under the age of 14 years, or incapable through lunacy or unsoundness of mind of giving legal consent; or accomplished with any female by means of force overcoming her resistance, or by means of threats of immediate and great bodily harm, accompanied by apparent power of execution, preventing such resistance, is rape in the first degree. In all other cases rape is of the second degree.”

At the time this case was submitted counsel for defendant and for the state presented oral argument, but no written briefs have been filed. The principal contention made is that the charge is for rape in the second degree, and that the instructions of the court classing the offense and instructing a penalty as for rape in the first degree is error. From the foregoing quotations from the information and the instructions, it is evident the charge is based on the sixth subdivision of section 2515, supra, that is, that the intercourse was accomplished with the prosecutrix after she had been administered an intoxicant by, or with the privity of, the accused, which prevented resistance, and that under the provisions of section 2518, supra., intercourse accomplished under such circumstances is rape in the second degree. In the latter section rape is classified, and rape in the first degree is committed only when the act falls under the third, fourth, and fifth subdivisions of section 2515, and under the first subdivision, where the female is under the age of 11 years. The information to some extent intermingles the elements of rape as defined in the third subdivision and the sixth subdivision. The court’s instruction 1 likewise intermingles the elements of rape as defined in the third and sixth subdivisions. This intermingling of the provisions of the third and sixth subdivisions has resulted in confusion, for, if the offense charged and proven is under the third subdivision, it is rape in the first degree, and the minimum punishment imprisonment for 15 years, while, if, under the provision of subdivision 6, it is rape in the second degree, the minimum punishment is not less than one year as fixed by section 2520. Having reached the conclusion that the language used clearly fixes the charge under the sixth subdivision, it follows the instruction of the court defining the offense as rape in the first degree and. instructing punishment is error. This error, however, does not require a reversal. This court, under the power to modify judgments, section 3204, Okla. St. 1931, may reduce the judgment to the included offense of rape in the second degree and fix appropriate punishment. Lebo v. State, 40 Okla. Cr. 116, 267 Pac. 288; Plaster v. State, 45 Okla. Cr. 452, 283 Pac. 805; Brasel v. State, 48 Okla. Cr. 403, 291 Pac. 807.

The judgment is therefore modified from rape in the first degree to rape in the second degree, the punishment fixed at four years in the penitentiary, and, as modified, the case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    EZRA BROWN v. STATE.
    No. A-8561.
    Sept. 8, 1933.
    (24 Pac. [2d] 1013.)

      E. W. Snoddy, for plaintiff in error.
    J. Berry King, Atty. Gen., and. Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was tried in the district court of Woods county upon an information charging the defendant with the crime of willfully, intentionally, unlawfully, and feloniously using and operating a distillery in the manufacture of intoxicating liquor, to wit, whisky. To this information the defendant demurred. One of the grounds of the demurrer is that the court did not have jurisdiction of the offense charged. This demurrer was overruled, and defendant duly excepted.

The overruling of the demurrer by the court is assigned as one of the errors by the defendant, and is the only question argued. The prosecution in this case is based on chapter 1, Session Laws of Oklahoma 1923, which chapter was by the court, in Ex parte Smith, 24 Okla. Cr. 415, 218 Pac. 708, held to be unconstitutional and void, on the ground that it was in conflict with, and exceeded the limitations contained in, the original ordinance prohibiting the manufacture and sale of intoxicating liquor. The Attorney General admits that the demurrer of the defendant was well taken, and that the court was without jurisdiction of the offense charged. Ex parte Smith, supra, has been approved by this court in the following cases: Ex parte Safarik, 25 Okla. Cr. 50, 218 Pac. 1112; Ex parte Scott, 25 Okla. Cr. 28, 219 Pac. 158; Ex parte Wade, 25 Okla. Cr. 29, 219 Pac. 159; Moore v. State, 26 Okla. Cr. 395, 224 Pac. 372; Karas v. State, 26 Okla. Cr. 393, 224 Pac. 373.

The trial court was without jurisdiction, and it follows that the judgment and sentence in this case is null and void. The judgment is reversed, and the cause remanded to the district court of Woods county, with directions to* dismiss the prosecution.

EDWARDS, P. J., and CHAPPELL, J., concur.


text:
    Ex parte FRANK MEYERS.
    No. A-8594.
    Aug. 4, 1933.
    Rehearing Denied Sept. 8, 1933.
    (24 Pac. [2d] 1011.)
    J. M. Roberts, for petitioner.
    J. Berry King, Atty. Gen., aiv# Sjmith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Petitioner, Frank Meyers, alleges, in substance, that he was convicted of the crime of driving an automobile while under the influence of intoxicating liquor, and ivas sentenced to serve one year in the penitentiary and to pay a fine of $1,500 and costs; that he has served the term of imprisonment as specified in the judgment and is now being held in the penitentiary for service of the fine and costs at the rate of $1 per day, it being provided - in the judgment that he be confined at that rate until the fine and costs were paid; that he is a pauper and has no money with which to pay the fine and costs; that the punishment provided for the crime of which he was convicted, to wit: “Any person violating the provisions of this section shall be deemed guilty of a felony and shall be punished by imprisonment in the penitentiary not more than one year, or by a fine of not more than $2,000, or by both imprisonment and fine,” means that the court or jury may assess imprisonment or fine as punishment, but that both such fine and imprisonment should not exceed one year.

Petitioner was prosecuted under chapter 16, section 3, Session Laws 1923. The provisions of this statute are not ambiguous, and it clearly appears to have been the legislative intent that a person convicted under such statute might be imprisoned in the penitentiary for a maximum period of one year, or he might receive a maximum fine of $2,000, or, in the discretion of the court and jury, both the maximum fine and the maximum imprisonment might be assessed if the court or jury thought such punishment fitting to the case.

It is contended that the provisions providing such punishment are unconstitutional as being in violation of section 9, art. 2, Constitution, which provides:

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishments inflicted.”

The answer to petitioner’s contention is found in McMahon v. State, 70 Neb. 722, 97 N. W. 1035, where that court said:

“A large discretion is vested in the Legislature in the fixing of penalties designed to prevent the commission of certain prohibited acts; and a penalty imposed by statute will not be held unconstitutional as excessive, unless it is so excessive as to shock the sense of mankind.”

To' the same effect are: Ellis v. State, 54 Okla. Or. 295, 19 Pac. (2d) 972; Doyle v. Commonwealth, 100 Va. 808, 40 S. E. 925; State v. Constantino, 76 Vt. 192, 56 A. 1101; Territory v. Ketchum, 10 N. M. 718, 65 Pac. 169, 55 L. R. A. 90; State v. Apple, 121 N. C. 584, 28 S. E. 469.

Some courts have apparently gone too far and state the rule to be:

“Const, art. 1, § 16, providing that cruel and unusual punishments shall not be inflicted, has reference to the statute fixing the punishment, and not to the punishment assessed by the jury within the limits fixed by the statute; and, if such punishment is within the statute, it is not excessive.” Shields v. State, 149 Ind. 395, 49 N. E. 351; Jackson v. United States (C. C. A.) 102 F. 473. But the greater weight of authority supports McMahon v. State, supra.

Driving an automobile while intoxicated is a grave offense, the driver being a potential murderer of any peaceful citizen going about his business on the public highway. The punishment fixed by chapter 16, section 3, Session Laws 1923, is not excessive, but is very moderate considering the gravity of the offense.

The contention that imprisonment for fine and costs is unauthorized by law is not an open question. This court in Ex parte McCoy, 45 Okla. Cr. 52, 281 Pac. 813, and in Ex parte Alvarado, 54 Okla. Cr. 127, 15 Pac. (2d) 147, settled that question adversely to petitioner’s contention.

The Supreme Court of this state in Ex parte Eurick, 143 Okla. 280, 288 Pac. 467, has also said:

“The state has power and authority to hold a person convicted of a felony in the penitentiary to serve one day for each $1 of fine and costs taxed against him.”

The other matters complained of by petitioner cannot be raised in habeas corpus, but can only be raised upon appeal.

The writ is therefore denied.

EDWARDS, P. J., concurs. DAVENPORT, J., not participating.


text:
    VIRGIL WININGER v. STATE.
    No. A-8553.
    Aug. 8, 1933.
    Rehearing Denied Sept. 8, 1933.
    (24 Pac. [2d] 664.)
    David Tant, for plaintiff in error.

      J. Berry King, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and Ted K. Fisher, Co. Atty., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Blaine county of the crime of conjoint robbery, and his punishment fixed by the court at imprisonment in the state penitentiary for a period of ten years.

Defendant first contends that the evidence is insufficient to support the verdict of the jury.

The evidence of the state was that John Webb, who had known the prosecuting witness I. M. Hughes for about ten years, Joe Watson (alias Mr. Bailey), and defendant, went to the home of the prosecuting witness in Geary, on the pretense of selling him some oil stock; that through threats they forced him to go to- the bank — Bailey accompanying him — and there draw $2,000 in currency; that the parties threatened to shoot the prosecuting Avitness full of holes if he made any outcry; that, after they returned to the residence of prosecuting witness defendant grabbed the money and ran with it toward town; that prosecuting witness in his car overtook defendant and the money was returned to- him; that after going back to the house, following the recovery of the money, defendant again took the money and fled Avith it, after telling the prosecuting witness that, if he hollered or made any back talk, he would be riddled with bullets. Defendant claims that he won the $2,000 in a poker game Avith the prosecuting witness, at his home. The jury, we think properly, believed the prosecuting witness rather than the defendant himself, and found him guilty.

It is next contended the court erred in overruling defendant’s motion for a continuance.

It appears from the affidavit filed by defendant that the case was set for trial on the 23d day of September, 1932, at Watonga; that on the 21st day of September, 1932, defendant had a subpoena issued for one A. B. Cooper, directed to the sheriff of Oklahoma county. It is apparent from the affidavit that due diligence was not shown by defendant to secure the attendance of this witness.

A defendant who' applies for a continuance on the ground of absent witnesses must exhaust all his legal remedies to obtain the presence of such witnesses, and this must affirmatively appear from the affidavit; otherwise it is bad on its face, and it is not an abuse of discretion for the court to overrule the application. Guest v. State, 46 Okla. Cr. 228, 287 Pac. 818; Wagner v. State, 46 Okla. Cr. 269, 285 Pac. 141.

Defendant next contends that, if any crime was committed, it was that of larceny from the person and not conjoint robbery.

The authorities which he cites correctly state the law covering the facts in those particular cases, but they are distinguishable from the case at bar in this, that in those cases there was no wrongful taking of personal property accomplished by means of force or fear. In the case at bar there is ample evidence, as shown by the testimony of the prosecuting witness, of threats and intimidation by the defendant, which caused the prosecuting witness to fear for his life, and by reason thereof the $2,000 was taken by defendant and his accomplices from the prosecuting witness.

Defendant next complains the court erred in refusing to give certain requested instructions.

An examination of the record discloses that the court on its own motion correctly instructed the jury upon the matters requested by defendant. This court on a number of occasions has held that it is not error for the trial court to refuse to give requested instructions, although they may correctly state the law, if the principles therein contained have already been given in the general instructions.

The court having properly instructed the jury on the theory of the defense, defendant was not entitled to have his requested instructions given, even though they may have correctly stated the law.

While some of the instructions are not artfully drawn, yet, when they are all considered together, they fairly state the law of the case and were as favorable to defendant as the evidence warranted.

Finding no substantial! error in the record, the cause is affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


text:
    S. A. LARKIN v. STATE.
    No. A-8441.
    June 9, 1933.
    Rehearing Denied Sept. 8, 1933.
    (24 Pac. [2d] 357.)

      Miller & Miller and Vance & Bliss, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was by information charged with the crime of murder in taking the life of W. L. McBroom ; was convicted of manslaughter in the first degree, and sentenced to serve a term of four years in the state penitentiary, and appeals.

The testimony on behalf pf the state shows that the defendant, S. A. Larkin, and the deceased, W. L. McBroom, were related by marriage, the defendant living and being-in business in a little place by the name of Ray, and the deceased living at Hulbert; that on the date of the killing the defendant and deceased were in the town of Hulbert together, going from one place to another, finally going to a restaurant of a man by the name of Trapp, where they drank what purported to be whisky, after which they returned to the hotel. A number of parties saw them go into the hotel; they were in the kitchen or back of the hotel talking when some controversy arose over a dog; shots were heard, and when the parties got to -the room they found W. L. McBroom had been fatally shot. The defendant was in the room. .So far as the record shows the deceased and defendant had had no trouble prior to the time they went to the kitchen of the hotel, and had been friends for many years.

The defendant testifying in his own behalf said that from the time he took the drink in the restaurant until the night after the killing when he came to himself in the jail at Tahlequah he had no recollection of what took place; that his mind was blank, and, if he shot the deceased, he had no recollection of it. He admits having possession of a pistol in his car when he went to Hulbert the day the killing took place, and it is shown the pistol found on the floor, or somewhere in the hotel, was the pistol of the defendant. It is not disputed that the defendant had a pistol the day of the killing. Prior to the killing the defendant had borne a good reputation, and a number of his neighbors testified as to his being a law-abiding citizen.

The only controverted question to be decided in this case is, Was the defendant so intoxicated or drugged as to be incapable of knowing the consequences of his acts? This question Avas submitted to the jury by the court; the jury, after hearing all of the testimony, the argument of counsel, and instructions of the court, found against the defendant and returned its verdict of guilty and fixed the minimum punishment under the law for one convicted on a charge of manslaughter in the first degree. This court has repeatedly held that, when there was any competent evidence to sustain the verdict, it would not disturb the same.

Several errors have been assigned, by the defendant, but, as the defendant has not cited any authority in support of his assignments and has argued them all together, it is not deemed necessary to further refer to the testimony in the case or to set out at length the assignments.

In Cheadle v. State, 11 Okla. Cr. 566, 149 Pac. 919, L. R. A. 1915E, 1031, in the first paragraph of the syllabus, the court said:

“In a prosecution for murder, alcoholic insanity, or mental incapacity produced by voluntary intoxication existing only temporarily at the time of the homicide, is no justification or excuse therefor. To constitute insanity, caused by intoxication, a defense in a trial for murder, it must be insanity caused by chronic alcoholism and not a mere temporary mental condition.”

In Collier v. State, 17 Okla. Cr. 139, 186 Pac. 963, 12 A. L. R. 839, Cheadle v. State, supra, is cited with approval.

After a careful examination of the record we hold that the evidence is amply sufficient to sustain the verdict and judgment; that the court in its instructions correctly advised the jury as to the law applicable to the facts in the case. The other errors assigned by the defendant do not possess sufficient merit to warrant a reversal. The defendant was accorded a fair and impartial trial.

Finding no errors in the record sufficient to warrant a reversal, the judgment is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


text:
    SAM EGGAR v. STATE.
    No. A-8627.
    Sept. 18, 1933.
    (25 Pac. [2d] 710.)
    Amil H. Japp, for petitioner.
    J. Berry King, Atty. Gen., and S. C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

This is an original proceeding in habeas corpus. Petitioner alleges he is unlawfully restrained by the sheriff of Comanche county; that his restraint is based on the following stat i of facts:

That he is held under four informations in the district court of said county, which separate informations charge petitioner with obtaining money under false pretenses. One of said informations is set out and the original is introduced in evidence, which information in substance alleges that petitioner fraudulently and feloniously, by false pretenses, with the intent tO' cheat and defraud, obtained from one Mildred Shannon the sum of $2. It is further alleged the other informations are similar in form and. substance, each alleging the procuring by false pretense sums of less than $20.

Petitioner contends the offense is under the provision of section 2086, Okla. Stat. 1931, beeing chapter 33, Sess. Laws 1923. Said section is in part:

‘‘Section 2086. Every person who, with intent to cheat and defraud, shall obtain or attempt to obtain from any person, firm or corporation, any money, property, or valuable thing, of the value of twenty ($20.00) dollars, or less, by means or by use of any trick or deception, or false or fraudulent representation, or statement or pretense, or by any other means or instrument or device commonly called the ‘confidence game/ or by means or use of any false or bogus checks, or by any other written or printed or engraved instrument or spurious coin, shall be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine not to exceed one hundred ($100.00) dollars, or by imprisonment in the county jail for not more than thirty (30) days, or by both such fine and imprisonment. If the value of the money, property or valuable thing referred to in the preceding paragraph, be more than twenty ($20.00) dollars, any person convicted hereunder shall be deemed guilty of a felony and shall be punished by imprisonment in the state penitentiary, for a term not exceeding seven (7) years, or by a fine not to exceed five hundred ($500.00) dollars, or by both such fine and imprisonment. * * *”

There is some conflict in the statutes. The county attorney evidently is proceeding under section 2087, Okla. Stat. 1931, being section 2145, C. O. S. 1921, which section defines a felony in the procuring of money or property by false pretense without regard toi the value of the money obtained. In 1913 the Legislature, by chapter 72, Sess. Laws 1913, enacted a statute covering much the same matter asi section 2145, defining as a felony the obtaining of money or property, which section became 2146, C. O. S. 1921. This section was amended by chapter 33, Sess. Laws 1923, above quoted. For the first time, by this amendment, the obtaining of money or property, $20 or less in value, is made a misdemeanor. The Legisla* ture, by the amendment of 1923, evidently intended to make the obtaining of money or property, where the amount was $20 or less, a misdemeanor, to conform to the degrees of larceny, section 2256, Okla. Stat. 1931, and the statutes as to embezzlement, section 2049, Okla. Stat. 1931. See Warner v. Mathews, Judge, 11 Okla. Cr. 122, 143 Pac. 516.

We are satisfied the offense charged is a misdemeanor and that the district court is without jurisdiction.

The writ is awarded and petitioner is discharged, subject, however, to any other proceeding in a court of competent jurisdiction for a misdemeanor.

DAVENPORT and CHAPPELL. JJ.. concur.


author: EDWARDS, P.' J.

text:
    CHARLES A. MERRITT v. STATE.
    No. A-8557.
    Sept. 22, 1933.
    (25 Pac. [2d] 340.)
    David Taut, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P.' J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Oklahoma county of the crime of robbery with firearms, and his punishment fixed at imprisonment in the state penitentiary for 20 years.

On May 24, 1929, one Charles Yowell was conveying $75,000 from the Federal Reserve Bank to the American- • First National Bank, where he was employed as messenger. He was in a Ford coupe driven by a negro driver, Creed Harper. The coupe came to a stop on Third street, entering Robinson, and, as it did so, a car immediately behind this coupe stopped, a man jumped on the south running board, of the coupe, shot Yowell in the shoulder, and at the same time another man on the north side of the car pointed a pistol at Harper. One of them seized the canvas sack containing the money, threw it into- the car in the rear of the coupe, and both got- in and drove rapidly away. There was another person in the car in which the money was placed and in which the robbers made their escape. Defendant was not apprehended until March, 1932, at which time he was living at New Orleans, La., under an assumed name.

Neither Vo-well nor Harper was able to- identify defendant positively. On this point Vowell testified:

“* * * Q. I will ask yo-u to- state whether or not the man in the back seat, if you have seen him since that time? A. Why, I saw a person that resembled him. Q. Who was that? That was Mr. Merritt. * * *”

A Mr. Bond, who at the time was driving a delivery -car, turned from Robinson into Third street just as the robbery took place,, and upon the question of identity testified :

“* * * Q. Did you see the man in the back seat of the car? A. Yes, sir. Q. What did he have, if anything? A. Well, he had a gun. Q. Did you see the gun in his hand? A. Yes, sir. Q. Do you see that same man here now? A. Yes, sir. Q. Where is he? A. Sitting right there at the desk (indicating the defendant, Charles Merritt.) * * *”

Further, the state called Robert B. Thompson, who testified he and one “Cowboy” Hayes, one “Rusty” Gibson, and the defendant formerly lived at Kansas City and knew each other well. That witness, with his foster father, Hayes, Gibson, and defendant were connected with the robbery; that witness ascertained the time and manner of the bank messenger transporting the money from the Federal Reserve to the other bank, and otherwise aided and assisted in planning and preparing for the robbery; that witness and his foster father, C. W. Thompson, rented a place on West Twenty-Second street, and that Gibson rented an apartment on East Eleventh; that they discussed and made plans for the robbery, in which it was agreed Gibson was to drive the robbery car and defendant and Hayes were to accompany him and to participate; that defendant and Gibson stayed at the place witness had rented the night before the robbery; that immediately after the robbery Gibson, Hayes, and defendant went to the Twenty-Second street place, and after the robbery, witness also went to' this place, found them there, armed, and witness, at their direction, went to the car, procured the money, the proceeds of the robbery, which was in a canvas sack, and with Hayes carried it into the house, and he and Hayes counted it while defendant stood by and watched the count; that they paid $2,500 for the use of the car, and divided the remainder of $72,500 into four equal parts, one of which went to Gibson, one to Hayes, one to witness, and one to defendant. The testimony of the accomplice Thompson fully sustains the state’s case, and is amply corroborated by other testimony. Defendant interposed the defense of alibi, but admitted he was at the place on West Twenty-Second street the day before the robbery, while on his way from St. Joseph, Mo., to Dallas, Tex. There are various items of testimony not mentioned in this summary.

The brief of plaintiff in error is signed by him in person, and he predicates it by stating that it is not his intention “* * * to ask for a reversal of the case, but to ask for a commutation of the sentence. * * *” This is followed by argument in the nature of a plea for clemency, and concludes by asking this court to reduce the punishment assessed to the minimum of five years’ imprisonment.

In the light of the record, there can be no doubt of defendant’s active participation in this crime and his profiting from the fruits of the crime. This court has held frequently that it is not within its province to commute or extend clemency. The power of this court to modify a judgment is fixed by law, and is exercised only as a judicial act where justice requires. Section 3204, Okla. Stat. 1931; Anthony v. State, 12 Okla. Or. 494, 159 Pac. 934; Oliver et al. v. State, 55 Okla. Or. 7, 23 Pac. (2d) 718. Certainly a crime of the gravity of the one committed in this case, under the circumstances shown, calls for severe punishment, and the punishment assessed is not excessive.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    TOM MORRIS v. STATE.
    No. A-8583.
    Sept. 22, 1933.
    (25 Pac. [2d] 340.)
    W. J. Hulsey, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Pittsburg county of murder, and his punishment fixed at death. No briefs have been filed by either plaintiff in error or the state, but on account of the gravity of the case we have examined the record with care to see that all the formalities of the law safeguarding the rights of defendant have been observed.

On November 27, 1932, Joe House and his wife, at home in McAlester, were murdered with some sharp instrument, evidently an axe, with which several fatal wounds were made on the head and body of each. The information charged the murder of Mrs. Joe House. The slain parties operated a small grocery store and resided in a house near. The motive for the homicide appears to have been robbery. The homicide was discovered early the following morning. Officers were summoned, and preserved the evidence of the crime, taking a plaster cast of a shoe track with distinctive marks at the rear of the house, and an axe with the blade bloody was also found. Defendant was arrested as he was preparing to leave Mc-Alester, and two trunks at the baggage room of the depot, belonging to him, were searched. In one was a pair of shoes with blood spots on them, and with the distinctive marks shown by the plaster cast. Defendant at the time was under arrest, and when the shoes were found he ran from the scene and attempted to make his escape, but was again apprehended. A considerable sum of money in the possession of the slain persons prior to the homicide was missing, The sum of $150 in bills was found on the wife of defendant, concealed between an arch support and the foot. Defendant claims he had won this money in a dice game and delivered it to his wife. Defendant made an oral statement, in substance, that he was approached by Tom House, a son of the deceased Joe House, and a stepson of Mrs. Joe House; that he went to the home with Tom House, who went inside and brought out the money and gave it to him. He also stated he had placed a pocketbook of deceased on the east side of the city. Later he went with the officers, directed them where to drive, and pointed out the pocketbook in a pond of water, and it was recovered. He also told the officers where he procured an axe and where he threw it over the fence. The officers found the marks of the axe at the scene of the crime, as he stated. A written statement in the form of question and answer, made by defendant on the day following the homicide and signed by him by mark, was introduced in evidence. It is practically an admission of guilt. Defendant did not take the stand, and offered no-testimony. We have no doubt of his guilt, and find no material error in the record. The death penalty is a proper punishment for a crime of this character. The case is affirmed.

The original time for the execution having passed, owing to the pendency of this appeal, it is considered, ordered, and adjudged by this court that the judgment and sentence of the district court of Pittsburg county be carried out by electrocution of the defendant on the 24th day of November, 1933.

DAVENPORT and CHAPPELL, JJ., concur.