author: BESSET, J.

text:
    STATE v. FRED G. DENNIS.
    No. A-4011.
    Opinion Filed Nov. 29, 1924.
    (230 Pac. 935.)
    (Syllabus.)
    1. Appeal and Error — Defective Notice of Appeal Cured by Appearance of Appellee. Where the defendant in error enters a general appearance in this court he will not be heard to complain that the notice of appeal was defective.
    2. Indictment and Information — Demurrer on Ground that no Information Count Sufficient Overruled, if Any One Count Sufficient. Where an'attempt is made to state four separate offenses in an information in four separate counts and the information is attacked by demurrer on the sole ground that none of the counts state facts sufficient to constitute a public offense, such demurrer should be overruled if any one or more of the counts sufficiently states a public offense.
    3. Appeal and Error — Indictment and Information — When and from What State May Appeal — Nature and Effect of Appeal from Judgment Quashing Information as Dependent on Whether Defendant Discharged. In a criminal case the state may appeal to this court: First, from a judgment setting aside an indictment or information; Second, upon an order of court arresting judgment; and, third, upon a question reserved by the state. Where the judgment quashing or setting aside the information contains an order discharging the defendant, the appeal from the judgment is upon a question reserved by the state, for the reason that the defendant has been discharged and cannot be compelled to respond to any further orders in the proceeding, when so discharged the case as to him is at an end. The appeal then is on a naked question of law. But if the defendant be not ordered discharged, he must abide the further orders of this court on appeal, as well as any subsequent proceedings in the case in the trial court.
    4. Cases Distinguished. This case distinguished from the case of State v. Robertson, 28 Okla. ‘Cr. 234, 230 Pac. 932. In the Robertson Case the information was held good by this court, but the defendant could not be required to answer to the information thereafter because the trial court had ordered him discharged and the question appealed from was merely a reserved question of law. In this case the defendant was not so discharged, and must therefore abide the further orders and decisions of this court on appeal, and of the trial court pending subsequent proceedings.
    Appeal from District Court, Coal Comity; J. H. Linebaugh, Judge.
    Fred G-. Dennis was informed against for corruption in office, and from an order sustaining a demurrer to the information the State appeals.
    Reversed, with directions.
    The Attorney General, N. W. Gore, Asst. Atty. Gen., and E. N. Holland, Co. Atty., and Wylie Snow, Asst. Co. Atty., for the State.
    Trice & Davison and D. H. Linebaugh, for defendant in error.
   BESSET, J.

This is an appeal by the state of Oklahoma from an order of the district court of Coal county, sustaining a demurrer to an information charging the defendant in error, Fred G. Dennis, with corruption in office.

We are first confronted with a motion to dismiss the appeal filed by the defendant in error, alleging that no notice of appeal was served upon the defendant in error in the trial court, and no proof made that the defendant in error could not be found within Coal county; that it does not appear that notice of appeal was posted for three weeks in the office of the court clerk, as provided by law; that no summons in error has been issued or served, and that neither the defendant in error nor his attorneys have waived the issuance and service of such summons.

Omitting the caption, the record relating to notice of appeal is as follows:

“Notice of Appeal.
“Fred C4. Dennis, and George Trice and D. H. Linebaugh, his Attorneys of Record: You and each of you will take notice that the state of Oklahoma will appeal to the Criminal Court of Appeals of Oklahoma from the order of the district court of Coal county, entered on the 8th day of March, sustaining a demurrer to the information filed in this case. You will govern yourselves accordingly. E. N. Holland, County Attorney. ’ ’
“Service of the above notice on this the 21st day of May, 1921. George Trice, Attorney for Defendant.”
“I hereby certify that a copy of the above notice was served upon me in this case the 18th day of May, 1921, and that a copy of the same was duly posted in my office in Coal-gate, Oklahoma, on the same date. Arthur Reese, Court Clerk, Coal County, Oklahoma.”

Indorsed: “No. 1117. Filed May 21, 1921. Arthur Reese, Court Clerk, Eda Bonino, Deputy.”

It will be noted that the court clerk certified that a notice was duly posted. It also appears that service of the notice was accepted by one of the attorneys for the defendant. This would seem to be justification for holding that the defendant in error was absent from the county and the declaration that the notice was “duly posted” imports that it was posted for three weeks, as the law required.

The motion to dismiss the appeal should be denied for another reason; that defendant in error, by his attorneys, has entered his appearance in this court in the form of a stipulation between the parties to correct the journal entry made in the court below. The charging part of the information in this case, and the several counts therein, is as follows:

“Count No. 1. That Fred G-. Dennis, in the county and state aforesaid, on the days and year aforesaid, being the duly qualified and acting state bank commissioner, in and for the state of Oklahoma, and while acting in his official capacity as state bank commissioner in and for said state of Oklahoma, and having under his supervision as such official the Citizens’ State Bank of Coalgate, Coal county, Okla., a corporation organized and then and there existing under the laws of the state of Oklahoma, and as such corporation engaged in a general banking business at Coalgate, in said county and state, did willfully,' corruptly, knowingly; fraudulently, and felon-iously permit and connive at the receiving and accepting of deposits of money, checks, and drafts by the Citizens’ State Bank of Coalgate, Coal county, Okla., and which said Citizens’ State Bank of Coalgate, Coal county, Okla., was insolvent at the time said deposits of money, cheeks and drafts were received and accepted as aforesaid, and the said Fred 0. Dennis knew that the Citizens’ State Bank of Coalgate, Coal county, and state of Oklahoma was insolvent at the time of receiving and accepting said deposits of money, checks, and drafts aforesaid, contrary to the form of the statutes in such cases made and provided and against the peace and dignity of the state.
“Count No. 2. That Fred G-. Dennis, in the county and state aforesaid, on the day and year aforesaid, while acting in his official capacity as state bank commissioner of the state of Oklahoma, and having under his supervision as such official, as by law provided, the Citizens’ State Bank of Coalgate, Coal county, Okla., a corporation organized and then and there existing under the laws of the state of Oklahoma, and as such corporation then and there engaged in the general banking business at Coalgate, in said county, and state aforesaid, did wilfully, wrongfully, unlawfully, knowingly, corruptly, and feloniously, and with the fraudulent and felonious intent on the part of him, the said Fred G. Dennis, to cheat and defraud one C. E. Towery and other persons unknown to the county attorney, receive and accept and permit to be received and accepted in said Citizens’ State Bank of Coalgate, Coal county, Okla., deposits, with and without interest, of lawful money of the United States of America from the said C. E. Towery, or more than $400 and other sums of money unknown to the county attorney from persons unknown to the county attorney, and which said Citizens’ State Bank of Coalgate, Coal county, Okla., was insolvent at the time said deposits were received and accepted and permitted to be received and accepted as aforesaid, and the said Fred G. Dennis knew that the said Citizens’ State Bank of Coalgate, Coal county, Okla., was insolvent at the time he received and accepted said deposits and permitted said deposits as aforesaid to be received and accepted, contrary to the form of the statutes in such cases made and provided and against the peace and dignity of the state.
"Count No. 3. That Fred G. Dennis, in the county and state aforesaid, on the day and year aforesaid, while acting in his official capacity as state bank commissioner in and for the state of Oklahoma, and having supervision as such state bank commissioner of the Citizens’ State Bank of Coalgate, Coal county, Okla.,' and having full knowledge that S. A. Maxwell, president of said Citizens’ State Bank, aforesaid, had committed the crime of forgery by forging a certain note of ninety-four hundred ninety dollars and without knowledge or consent from one John Paris signing his name to same, said note being in words and figures as follows, to wit:
" ‘Coalgate, Okla., May 10, 1920.
“ ‘On demand, after date, without grace, for value received I, we, or either of us, promise to pay to the order of the Citizens’ State Bank ninety-four hundred ninety dollars, with interest at 10 per cent, per annum from date until paid. The makers and indorsers of this note hereby severally waive presentment for payment, notice for nonpayment, protest and notice of protest, and consent that the time of payment may be extended without notice thereof. Appraisement and all exemptions are waived. If suit be instituted we agree that judgment be rendered for 10 per cent, additional as attorney’s fees, and we hereby give full authority to said Citiens’ State Bank, or its assigns, to sell any collateral security assigned or attached at public or private sale without notice of nonpayment of this note.
" ‘This note is secured by John Paris.
" ‘P. 0. Address — City.’
“And the said Fred G. Dennis, having full knowledge of the aforesaid forged note, and having full knowledge that the same was forged by S. A. Maxwell, and that the said S. A. Maxwell, at the time, was president of the Citizens ’ State Bank, aforesaid, and having possession of said forged note aforesaid, the said Fred G. Dennis, did knowingly, wrongfully, willfully, unlawfully, and feloniously, corruptly, and fraudulently suppress and conceal said forgery of the said S. A. Maxwell, president of the Citizens ’ State Bank aforesaid, from the county attorney of Coal county, Okla., and refuse and neglect to inform the said county attorney of the said county and state of said crime of forgery committed by the said S. A. Maxwell, president of the Citizens’ State Bank aforesaid, contrary to the form of the statutes in such case made and provided, and against the peace and dignity of the state.
“Count No. 4. That Fred G. Dennis, in the county and state aforesaid and' on the day and- year aforesaid, while acting in his official capacity as state bank commissioner of the state of Oklahoma and having under his supervision, as by law provided, the Citizens’ State Bank of Coalgate, .Coal county,. Okla., and having full knowledge of certain crimes of forgery and embezzlement committed by one S. A. Maxwell, while the said S. A. Maxwell was president of the aforesaid Citizens’ State Bank of Coalgate, Coal county, Okla., and the said Fred G. Dennis, having full knowledge that the said S. A. Maxwell, while president of said Citizens’ State Bank of Coalgate, Coal county, Okla., had forged to notes the names of J. L. Bowen, J. B. Bowen, J. Harrison White, J. M. Hayes, C. S. Johnson, Mrs. J. W. Hurst, Jas. H. White, B. F. White, Fred F. Yock-stiek, R. R. Rogers and other persons unknown to the county attorney, for large sums of money, the exact amount of which is unknown to the county attorney, said notes having been in the possession of the said Fred G. Dennis, and the said Fred G. Dennis having full knowledge that the said S. A. Maxwell, acting as the president of the said Citizens’ State Bank of Coal-gate, Coal county, Okla., had embezzled from the funds of said Citizens’ State Bank of Coalgate aforesaid, the sums of money evidenced by the forged notes aforesaid, and which sum was great, but the exact amount of which is unknown to the county attorney, and. being in full possession of all tbe facts and having full knowledge of tbe aforesaid forgeries and embezzle-ments, tbe said Fred G. Dennis, did willfully, knowingly, unlawfully, wrongfully, feloniously and corruptly suppress from tbe county attorney of Coal county, Okla., all of said forgeries and embezzlements, and did unlawfully, willfully, wrongfully, feloniously, and corruptly conceal, fail, refuse, and neglect to report or inform tbe county attorney of Coal county, Okla., of such forgeries and embezzlements of the said S. A. Maxwell, while tbe said S. A. Maxwell was acting as president of tbe said Citizens’ State Bank of Coalgate, Coal county, Okla., as aforesaid, all of such acts and omissions on tbe part of him, tbe said Fred G. Dennis, being contrary to tbe form of the statutes in such eases made and provided and against tbe peace and dignity of tbe state.
“E. N. Holland,
“County Attorney, Coal County, Okla.”

This information was challenged by a demurrer, as follows :

“Comes now the defendant, Fred G. Dennis, by his attorneys, and' demurs to tbe information filed herein, and each and every count thereof, and for grounds for said demurrer says:
“First. That tbe facts stated do not constitute a public offense.
“Second. That the facts stated in count No. 1 of said information do not constitute a public offense.
“Third. That tbe facts stated in count No. 2 of said information do not constitute a public offense.
“Fourth. That the facts stated in count No. 3 of said information do not constitute a public offense.
“Fifth. That the facts stated in count No. 4 of said information do not constitute a public offense.”

That portion, of the order of the court sustaining this demurrer, in so far as it affects the questions involved in this appeal, is as follows:

“It is therefore ordered, decreed, and adjudged by the court that the demurrer to said information, and to each several count thereof, be and the same is hereby sustained. ’ ’

A part of the order following, as shown by the amended case-made, is as follows:

“To which the state excepts, and the county attorney of Coal county is granted permission by the court to amend his present information, or to file a new information. The county attorney refuses to amend his information or to file a new information, and elects to stand on the demurrer, excepting to the ruling of the court, and reserving the question of the court’s action in sustaining the demurrer as a question for appeal. ’ ’

A careful reading and analysis of the first count of the information quoted convinces the court that the demurrer as to that count was well taken and was properly sustained, as not stating facts sufficient' to constitute a public offense, for the reason that the allegations are, for the most part, conclusions and not statements of specific facts, and the facts which are stated are not sufficient to intelligently inform the accused of the overt acts constituting an offense.

It is the opinion of the court that count No. 2 states a public offense, under the provisions of section 4128, Comp. Stat. 1921, which is as follows:

“No bank shall accept or receive on deposit, with or without interest, any money, bank bills or notes, or United States Treasury notes, gold or silver certificates, or currency, or other notes, bills, checks, or drafts, when such bank is insolvent; and any officer, director, cashier, manager, member, party, or managing party of any bank who shall knowingly violate the provisions of this section, or be accessory to or permit or connive at the receiving or accepting of any such deposit, shall be guilty of a felony, and upon conviction thereof shall be punished by a fine not exceeding $5,000, or by imprisonment in the penitentiary not exceeding five years, or by both such fine and imprisonment.”

Under this section of the statutes the bank commissioner, in charge of the state banks, was a “manager” or a “party or managing party,” within the meaning of the statute and should be held amenable to its penal provisions upon proof of its violation by him, or upon a .showing that he knowingly aided and abetted others in its violation.

The court is of the opinion that counts 3 and 4 of the information state facts sufficient to constitute punishable offenses. The offenses stated in these counts are predicated upon sections 4233, 4234, and 4139, Comp. Stat. 1921 (Session Laws 1908-09). These sections read as follows:

“Sec. 4233. Any bank commissioner or assistant bank commissioner who shall neglect to perform any duty herein provided for, or who shall make any false statement concerning any bank, or who shall be guilty of any misconduct or corruption in office, shall, upon conviction thereof, be deemed guilty of a felony, and punished in the manner herein provided, and in addition thereto shall be removed from office.
“See. 4234. It shall be the duty of the bank commissioner to inform the county attorney of the county in which the bank is located of any violation of any provision of this chapter constituting a misdemeanor or felony by the officers, owners, or employees of any bank; and upon receipt of such information the county shall institute proceedings to enforce the provisions of this chapter.”
“Sec. 4139. Every banker, officer, employee, director, or agent of any bank who shall neglect to perform any duty required by this chapter, or who shall fail to conform to any lawful requirements made by the bank commissioner, shall be deemed guilty of a felony, and, upon conviction thereof, shall be punished by a fine not to exceed $1,000, or by imprisonment in the penitentiary not to exceed five years, or by both such fine and imprisonment.”

In counts 3 and 4 it was charged that the bank was carrying certain forged and worthless notes as assets, and that the bank commissioner knew that the officers of the bank had forged these notes or knew of the forgeries and were carrying them as living assets of the bank, and that he failed to report this condition to the county attorney, as required by law. By the provisions of section 4234, supra, it is made the duty of the bank commissioner to inform the county attorney of such crimes and irregularities, and by the provisions of section 4233, it is made a felony for the bank commissioner to fail or neglect to so report to the county attorney, the punishment for which is to be "in the manner herein provided.” Upon examination of the whole act, being the banking act of 1908-09, it appears that the phrase "in the manner herein provided” refers to section 26 of the original act, being section 4139, supra, which fixes the penalty at a fine of not to exceed $1,000 or imprisonment in the penitentiary not to exceed five years, or both such fine and imprisonment.

The act contains two other penal sections which make it a felony for the officers or agents of a bank to do or neglect to do the things therein described. One of these sections provides for the same punishment as it provided in section 4139, the other provides for a more severe penalty. Upon examination of the whole act we conclude that the provisions of section 4139 apply in this case, and that the other two penal sections are inapplicable. It follows, therefore, that there are three public offenses charged in this information, being the ones stated in counts 2, 3, and 4, respectively, and that the facts stated in each are sufficient to constitute a felony.

This is an appeal by the state from a judgment in favor of the defendant upon an order setting aside the information on demurrer, but containing no order discharging the defendant, as distinguished from an appeal on a purely reserved question of law. Section 2807, Comp. Stat. 1921, provides the only cases in which the state may appeal in a criminal case. This statute is as follows:

“Appeals to the Criminal Court of Appeals may be taken by the state in the following cases and no other:
“First. Upon judgment for the defendant on quashing or setting aside an indictment or information.
“Second. Upon an order of the court arresting the judgment.
“Third. Upon a question reserved by the state.”

An appeal by the state from an order setting aside an information is on a reserved question of law only where the court orders the defendant discharged and the case as to him is at an end; but not so when there is no order discharging the defendant. In this case the defendant was not ordered discharged, as will be seen by reading the order of the court. The order made by the trial court in this case differs in this regard from the order made in the case of State v. Robertson, 28 Okla. Cr. 234, 229 P. 932. In the Robertson Case the information was held good, but the defendant could not be required to answer to the information thereafter because the trial court ordered him discharged, and the question was therefore merely a reserved question of law. In this case the defendant, having not been so discharged, must abide the further orders and decision of this court on appeal, and of the trial court, pending subsequent proceedings. State v. Vaughn, 15 Okla. Cr. 187, 175 P. 731; State v. Franks, 21 Okla. Cr. 213, 206 P. 259; State v. Brown, 10 Okla. Cr. 52, 133 P. 1143.

Section 2612, Comp. Stat. 1921, provides:

“If the demurrer is sustained, the judgment is final upon the indictment or information demurred to, and is a bar to another prosecution for the same offense, unless the court being of opinion that the objection on which the demurrer is sustained may be avoided in a new indictment or information, direct the ease to be resubmitted to the same or another grand jury, or that a new information be filed.”

It may be contended that the language of the trial court, to the effect that the county attorney is “granted permission” to file a new or amended information, is not equivalent to “directing” that a new information be filed, within the meaning of section 2612, supra. It seems apparent that the trial court intended to hold the defendant amenable to further proceedings pending this prosecution on appeal, and subsequently, because: First, the order recited that the county attorney refuses to amend; and, second, because there was no order directing the defendant to be discharged. We hold, therefore, that the term “granted permission” to file a new or amended information was equivalent, in this case, to directing the filing of a new or amended information. Davenport v. State, 20 Okla. Cr. 253, 202 P. 18.

The only ground upon which this information was attacked in the trial court was that each of the counts failed to state facts sufficient to constitute a public offense. The demurrer did not' challenge the information on the ground that it stated more than one offense, as is prohibited by section 2558, Comp. Stat. 1921. But in order to obviate the possibility of another appeal on the ground that the information states more than one offense, the county attorney should elect as between counts 2, 3, and 4, or file sepárate informations, setting up the facts contained in each of these counts, respectively. This section provides that an information must contain but one offense. The allegations in these three counts are not related; they state three separate and distinct offenses, and do not state acts constituting the same offense, set forth in different language, within the meaning of the statute.

It is therefore ordered that the defendant, in the further proceedings of the trial court, be held to answer to whichever of the counts, 2, 3, or 4, the county attorney may elect to proceed upon; or, if the county attorney elects to file separate informations, covering the allegations contained'in these three counts, that the defendant be held for further proceedings under any or all of them, as the case may be.

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


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    ERNEST WISE v. STATE.
    No. A-4649.
    Opinion Filed Nov. 29, 1924.
    (230 Pac. 930.)
    (Syllabus.)
    1. Intoxicating Liquors — Evidence Sustaining Conviction for Unlawful Conveyance. In a prosecution for unlawfully conveying intoxicating liquor, evidence held to warrant a conviction.

      2. Jury — Waiver of Jury Trial in Misdemeanors. Under section 20, art. 7, Const., a person charged with a misdemeanor may waive a jury, the state consenting, and be tried by the court.
    3. Appeal and Error — Court’s Findings Effective as Verdict Where Jury Waived. Findings of fact by the court, where a jury has been waived, have the same effect as if the case had been tried to a jury.
    Appeal from County Court, Muskogee County; W. W. Cotton, Judge.
    Ernest Wise was convicted of a violation of the prohibitory liquor law, and he appeals.
    Affirmed.

      M. D. Hartsell, for plaintiff in error.
    George F. Short, Atty. Gen., and J. Roy Orr, Asst. Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error, Ernest Wise, was tried, convicted, and sentenced to be confined in the county jail for 90 days, and pay a fine of $250, upon an information which, omitting merely formal parts, charges:

• “That the said Ernest Wise, in the county of Muskogee, state of Oklahoma, on the 12th day of December, 1922, did knowingly and unlawfully transport certain spirituous liquor, vinous liquor, fermented liquor, malt liquor, and intoxicating liquor, to wit, six (6) gallons of whisky from a point unknown to. this affiant in Muskogee county, Okla., to another point in Muskogee county, Okla., to wit, on the public highway three (3) miles west of Haskell, Okla., contrary to,” etc.

From the judgment the defendant appealed, by filing in this court, on April 19, 1923, a petition in error with case-made.

The record shows that when the ease was called for trial, the defendant, the state consenting, waived trial by jury, and agreed that the same be tried and determined by the court without the intervention of a jury, and thereupon the court proceeded to hear the case.

A person charged with a misdemeanor may waive a jury and be tried by the court, the state consenting (article 7, § 20, Const.), which constitutional provision is self-executing. Cowden v. State, 5 Okla. Cr. 71, 113 P. 206; In re Wilkins, 7 Okla. Cr. 422, 115 P. 1118.

When the first witness was called, the defendant objected to the introduction of any evidence, for the reason that the information fails to state facts sufficient to constitute an offense, which objection was overruled. Exception reserved.

Gus Whittaker, deputy sheriff, testified that in the afternoon of the day alleged he and John Birchfield came upon the defendant, traveling in a wagon, about three miles west of Haskell; that they arrested him, searched the wagon, and found one five-gallon jug of whisky, and one three-gallon jug nearly full. John Birchfield testified to the same state of facts, and further stated that the defendant told him that he had come from Concharty mountain, and that he had made the whisky there the night before. ■

The defendant, offered no evidence, and at the close of the state’s case moved for an acquittal in the form of a demurrer to the evidence, and on the ground of variance, in that the evidence disclosed that the place from which the liquor was transported was known to the county attorney when the information was filed, which was overruled. The information properly charges the offense of transporting intoxicating liquor, and the objection to the introduction of evidence was properly overruled. There is no question as to the defendant’s guilt, and the variance was not prejudicial.

Section 2822, Comp. Stats. 1921, requires this court to determine appeals without regard to technical errors or defects in any matter of pleading or procedure, unless, in the opinion of the court, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, of constitutes a substantial violation of a constitutional or statutory right.

It is urged, on behalf of the defendant, that the sentence is unnecessarily severe, and should be reduced by this court. In view of the undisputed statement of the defendant that he made the whisky the night before, we do not think the punishment imposed was excessive.

The judgment of the lower court is accordingly affirmed.

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


text:
    ELMER McCOIN v. STATE.
    No. A-4648.
    Opinion Filed Nov. 29, 1924.
    (230 Pac. 757.)
    (Syllabus.)
    Larceny — Evidence Sustaining Conviction. In a prosecution for the larceny of a horse, evidence held to warrant a conviction.
    Appeal from District Court, Pittsburg County; Harve L. Melton, Judge.
    Elmer McCoin was convicted of larceny of live stock, and he appeals.
    Affirmed.
    W. J. Hulsey and B. S. Null, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error, Elmer McCoin, was convicted of larceny of live stock, and, in accordance with the verdict of the jury, was sentenced to imprisonment in the penitentiary for a term of five years. He has appealed from the judgment to this court, but there has been no appearance in his behalf on his appeal.

The information charged the defendant with the larceny of a horse, in Pittsburg county, on or about the 15th day of December, 1922, the property of one A. C. Johnson. The evidence shows that the defendant and his wife came to the home of Claud Giboney, about the 1st of October, and wanted to work for their board. After staying there about two weeks, the defendant told Giboney that he was going to work at a sawmill, and left. He came back and told Giboney that he was going to Stringtown for the sawmill people. His wife remained at Giboney’s until the following night, when she slipped away, without anybody knowing that she was gone, or where she was going. A few days later the defendant and his wife with a black horse appeared at the home of Frank Don-ham, near Daisy, in Atoka county, and stayed there for several weeks.

Donham offered him $25 for the black horse. The defendant said:

“Take a friend’s advice, and lay off that horse, it is a wet horse.”

In about a month the defendant traded the horse to Charley Allman for a sorrel. Donham told the defendant that it was not a good trade, and the defendant said:

“Well, he had a horse now he could ride down the road anywhere, and wasn’t ashamed to meet anybody; that he could not ride that black horse anywhere.”

A. C. Johnson, owner of the alleged stolen horse, lived at Haileyvilk, and worked at mine No. 7, north of Hartshorne, on the night shift, driving to his work, and putting his horse in the shed. He missed his horse the next morning. He traced the horse to the home of Frank Donham. The horse was later found in the possession of the man the defendant traded with. The evidence further shows that a horse had been fed in the woods about 50 yards from Giboney’s house the night the defendant’s wife slipped away from Giboney’s.

On the part of the defense, Lettie McCoin, wife of the defendant, testified that she was living with her husband near Daisy in Atoka county, when her husband was arrested for stealing tbe big black horse they had; that her husband bought this horse from a horse jockey near Adell, in Atoka county; that she was with him when he bought the horse, and her husband paid the man $25 for the horse; that they kept the horse at Frank Donham’s until he traded it. The defendant did not testify.

The errors assigned question the sufficiency of the evidence to sustain the verdict and judgment. While the evidence of the defendant’s guilt, relied on by the prosecution, was wholly circumstantial, it is difficult to understand on what theory the defendant could base any hope of securing a reversal by an appellate court on the ground of want of evidence, after a verdict of guilty had been returned by the trial jury upon the consideration of the evidence in this case.

The record shows that the defendant had a fair trial. In our opinion the verdict was as favorable to the defendant as the law and the testimony warranted. The judgment of the lower court is accordingly affirmed.

MATSON, F. J., and BESSEY, J., concur.


text:
    EUGENE SIMMONS v. STATE.
    No. A-4659.
    Opinion Filed Nov. 29, 1924.
    (230 Pac. 757.)
    (Syllabus.)
    Intoxicating Liquors — Evidence Sustaining Conviction for Unlawful Transportation. In a prosecution for transporting intoxicating liquor, evidence held to sustain a conviction, and that no material error was committed on the trial.
    Appeal from County Court, Muskogee County; W. W. Cotton, Judge.
    Eugene Simmons was convicted of a violation of the prohibitory liquor law, and he appeals.
    Affirmed.

      M. D. Hartsell, for plaintiff in error.
    George F. Short, Atty. Gen., and J. Roy Orr, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this ease charges that defendant, Eugene Simmons, did transport four gallons of whis-ky from a point unknown, in Haskell county, to Main street, in the town of Haskell. Upon the trial the jury returned a verdict finding the defendant guilty and fixing his punishment at 60 days in jail and a fine of $100. He has appealed from the judgment rendered upon such conviction.

The evidence shows that on the date alleged, Deputy Sheriff Whittaker saw defendant Simmons-and Boyce Little-john driving down Main street in the town of Haskell, about 3 o’clock in the morning; there was a three-gallon keg and a one-gallon jug of corn whisky in the buggy; Littlejohn was driving. It appears that the horse and buggy belonged to defendant Simmons.

As a witness in his own behalf, the defendant Simmons testified that he had been out to the home of his mother-in-law, staying all night, and got up about 3 o’clock to go to Haskell to catch the 9 o’clock train to Muskogee; that as he left his mother-in-law’s place Littlejohn came along; and that he rode to town with him. He denied having any interest in the whisky.

After an examination of the record, we are satisfied that the errors assigned are without merit; the information is sufficient, and the court properly overruled defendant’s objection to the introduction of evidence on the ground that the information does not state facts sufficient to charge an offense; the evidence is sufficient to sustain the verdict; there is no prejudicial error in the ruling upon the admission of testimony; and the instructions fully stated the law applicable to the case.

The judgment of the lower court is, accordingly, affirmed.

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


author: MATSON, P. J.

text:
    R. J. ROBERTSON et al. v. STATE.
    No. A-4582.
    Opinion Filed Dec. 2, 1924.
    (230 Pac. 756.)
    (Syllabus.)
    Trial — Mistrial as Result of Not All. Jurors Appearing When Verdict Returned. When the jury have agreed upon their verdict, they must be conducted into court by the officer having them in charge, and if, when their names are called, they do not all ap-' pear, the rest must be discharged without giving a verdict. In ■ such case the cause must be again tried at the same or another term.
    Appeal from County Court, Comanche County; P. G. Fullerton, Judge.
    R. J. Robertson and another were convicted of unlawfully conveying intoxicating liquor, and they appeal.
    Reversed and remanded, with instructions.
    H. A. Smith and Lewis Hunter, for plaintiffs in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   MATSON, P. J.

This is an appeal from a judgment of conviction rendered in the county court of Comanche county •wherein the plaintiffs in error, upon a joint trial, were each sentenced to 30 days’ imprisonment in the county jail, and to pay a fine of $100 for the offense of unlawful conveyance of intoxicating liquor. From the judgment rendered against them an appeal is taken to this court, and the Attorney General has filed the following confession of error:

"This is an appeal from a judgment of the county court of Comanche county, convicting the plaintiffs in error of unlawful transportation of intoxicating liquor, and fixing their punishment at 30 days in jail, and to pay a fine of one hundred ($100.00) dollars. We find on page fifty-one of the case-made the following record, being a statement of the court:
" 'The case was submitted to the jury at 6 o’clock, with the instruction that they might, if they reached a verdict, seal the verdict and return it into court. After the jury had deliberated and reached a verdict, Joe Howenstine called the court over the telephone, and reported that the jury had reached a verdict, which was signed by him as foreman, and he had sealed the same, and informed the court that his attention had been called to the fact that his sister was seriously sick and unconscious at Mineo, Okla., and requested the court to be discharged from further jury service at this term, which request was allowed by the court.
“ 'Now on this 22d day of November, the jury being called, all being present, except Joe Howenstine, report to the court, and the verdict is read that it was the unanimous verdict of the jury and the verdict of each of them, and was signed by Joe Howenstine as foreman, and is received by the court as the verdict of the jury.’
"Also on page 53, journal entry, which is as follows:
" 'And now at this time, November 22, 1922, 9 a. m., the parties to this action are present as at the evening session at the time the jury retired for deliberation, and the jury comes into open court, are called, and each answers and is present except the foreman, Joe Howenstine, who was excused by the court after reaching a verdict, and the jury announced that they had agreed upon a separate verdict for each defendant and presents the same to the court.
“ ‘Thereupon the court examines the verdict and orders the clerk to file, record, and read the same aloud in open court, which is accordingly done, and the same were in words and figures, to wit:
“ ‘Verdict of Jury.
“ ‘In the County Court in and for Comanche County, .State of Oklahoma.
“ ‘The State of Oklahoma, Plaintiff, v. J. R. Robertson et al., Defendant. No. 3408.
“ ‘Verdict of Jury.
“ ‘We, the jury, empaneled and sworn to try the issues joined in the above case and a true verdict rendered according to law and the evidence, do say on our oaths that we find the defendant, J. B. Robertson, guilty as charged in the information, and leave the assessment of his punishment to the court.
“ ‘Joe Howenstine, Foreman.
“ ‘In the County Court in and for Comanche County, State of Oklahoma.’
“We also find the following journal entry on page 54 of the case-made:
“ ‘Thereupon the jury are polled upon their verdicts, “So say you all, gentlemen, and is this your verdict?” and they and each of them answer, “Yes.”
“ ‘Thereupon the separate verdicts are received by the court, and the jury is discharged from further consideration in this case. Thereupon the defendants and each of them object to the verdict for the reason that the foreman was absent, and it is ordered by the court that the objection be overruled. To which ruling of the court the defendants except and exceptions are by the court allowed.
“ ‘Thereupon it is ordered by the court that judgment and sentence be passed upon the defendants in November 25, 1922, at 9 a. m. and it is- further ordered by the court that the defendants continue on their appearance bonds pending judgment and sentence.
"Section 2735, Compiled Oklahoma Statutes 1921, is as follows:
" 'When the jury have agreed upon their verdict, they may be conducted into court by the officer having them in charge. Their names must then be called, and, if all do not appear, the rest must be discharged without giving a verdict. In that case the cause must be again tried, at the same or another term.’
"It appearing from the record that such a trial as is contemplated by the statute of the state of Oklahoma, and guaranteed to each of its citizens by the Constitution, has not been accorded the plaintiffs in error,- we, therefore respectfully suggest that this cause should be reversed.
"George F. Short, Attorney General.
"N. W. Gore, Assistant Attorney General.”

An examination of the record sustains the confession, and we think the same is well founded in law in view of the statutory provisions governing the rendition and reception of verdicts in criminal cases.

In addition to the section of the statutes cited in the confession of error the following numbered sections of the statute should be referred to: Sections 2731, 2732, and 2733, Compiled Statutes 1921.

There is no ambiguity of meaning in the foregoing statutory provisions. It is plainly provided that all the jurors .must be present and must appear in open court at the time the verdict is returned. If all the jurors do not appear, those that do appear must be discharged without giving a verdict, and the case must be tried again at the same or another term of court.

It is evident, therefore, that the verdicts received by the court against each of these plaintiffs in error were nullities, and the sentences and judgments rendered on such verdicts are also null and void. The confession of error of the Attorney General, therefore, is sustained, and the judgment as to each plaintiff in error is set aside and the cause remanded to the trial court, with instructions to grant a new trial.

BESSEY and DOYLE, JJ., concur.


text:
    JESSE STEELE v. STATE.
    No. A-4292.
    Opinion Filed Dec. 2, 1924.
    (230 Pac. 760.)
    (Syllabus.)
    1. Evidence — Proof of Venue. The venue of a criminal action does not have to be proved beyond a reasonable doubt. Where there is evidence in the record, uncontradicted, from which the jury was authorized to find that the alleged crime was committed in the county where the trial took place, proof of venue is sufficient.
    2. Appeal and Error — T rial — Reversal for Contradictory and Confusing Instructions. The use of double negatives should not be employed in instructions. The court should confine itself to an affirmative statement of the law in stating the state’s side of the case. Where the principal instruction defining the offense and the burden of the state to prove the guilt of the accused is apparently contradictory, vague, indefinite, and confusing, and the evidence of the accused’s guilt is wholly circumstantial, and of an unsatisfactory nature, and falls short of proving overt acts on the part of the accused toward the commission of the crime charged, the judgment will be reversed.
    Appeal from County Court, Major County; Harry Randall, Judge.
    Jesse Steele was convicted of unlawfully manufacturing intoxicating liquors, and he appeals.
    Reversed and remanded.

      In Steele v. State, 25 Okla. Cr. 226, 219 P. 429, this court dismissed this appeal lor the reason that the petition in error and case-made were not filed within 60 days from judgment, and no order extending the time appeared in the record.
    On January 12, 1924, the county court of Major county, upon a hearing had on the application of the plaintiff in error to correct the order made by said court on January 28, 1922, entered a nunc pro tune order correcting said order of January 28th, showing that in truth and in fact an order was then made extending the time within which to take, file, and perfect the appeal for sixty days beyond and from-the expiration of the statutory period of 60 days. Thus, this defendant had 120 days from judgment within which to file his petition in error, and this court had already found that the same was filed 118 days from the rendition of judgment. The Attorney G-eneral and plaintiff in error filed in this court a stipulation to the effect that such nunc pro tunc order was made by the county court of Major county, after a hearing duly had, and that Exhibit A thereto attached was a full, true, and correct copy of said order now on file in the county court of Major county, and further stipulated that said Exhibit A shall, for all purposes of this appeal, be considered a part of the case-made, the same as though said case-made had been withdrawn and corrected under an order of this court, and that said order was necessary to correct the former order of said court, and make the same speak the truth.
    This stipulation and correction of the record in this manner is specifically permitted and provided for in section 786, C. O. S. 1921.
    The assignments of error are as follows: The trial court erred in overruling the demurrer of plaintiff in error to the evidence offered by the state. (2) The said court erred in giving instruction No. 1. (3) The said court erred in giving in-struetion No. 2. (4) The said court erred in giving instruction No. 5. (5) The said court erred in giving instruction No. 6. (6) The said court erred in giving instruction No. 7. (7) The said court erred in refusing to instruct the jury to return a verdict of not guilty. (8) The said court erred in overruling the motion of plaintiff in error for a new trial.
    Harris, Spielman, Thomas & Harris and C. B. Wood, for plaintiff in error.
    George F. Short, Atty. Gen., and Baxter Taylor, Asst. Atty. Gen., for the State.
   MATSON, P. J.

(after stating the facts as above). The first assignment of error, to wit, that the trial court erred in overruling the demurrer of the plaintiff in error to the evidence offered by the state, is based largely on the failure of the State to prove the venue of the prosecution to have been in Major county.

The only evidence on the question of venue is to the effect that the still in which it was contended the whisky was manufactured was found in Major county on the farm of the defendant, and also that the home place of the defendant was located in Major county, but there is some evidence to the effect that the defendant owned other farms than the one on which he lived, and that these farms were west of where the defendant lived, and that the still was found on one of these other farms. While the venue of the action, perhaps, cannot be said to have been proved beyond a reasonable doubt, this court has held that venue does not have to be proved beyond a reasonable doubt. Fuller v. Territory, 2 Okla. Cr. 86, 99 P. 1098; Gritts v. State, 6 Okla. Cr. 534, 118 P. 673, 120 P. 669.

It cannot be said that there is no proof of venue in this ease. All the evidence on the question of venue goes to prove that the alleged crime was committed in Major county. In the absence of any proof to the contrary, we think this proof was sufficient on the question of venue.

The second assignment of error relates to the giving of instruction No. 1, over the objection and exception of the defendant.

Such instruction is as follows:

“You are instructed that in this case the state prosecutes one Jesse Steele, by information charging that on or about the 30th day of April, in the year of 1921, the said defendant did manufacture willfully, wrongfully, and unlawfully, in this county and state, spirituous, vinous, or fermented liquor containing more than one-half of 1 per cent, of alcohol measured by volume, and the state’s theory of the case is that the defendant, Jesse Steele, was an aider and abbettor in the offense of manufacturing intoxicating liquors, and, if you find from the evidence in this case beyond a reasonable doubt that intoxicating liquors were manufactured on the premises, as .described in the evidence, in Major county, Okla., either by the defendant, Jesse Steele, or by Jesse Steele in conjunction with other parties, or that the said defendant, Jesse Steele, aided or abbetted other parties in manufacturing any intoxicating liquor, you will find the defendant guilty, and so say by your verdict. But in case you find from the evidence that the state has failed to prove to your satisfaction beyond a reasonable doubt that said defendant, Jesse Steele, manufactured intoxicating liquors or did not manufacture intoxicating liquors in conjunction with others, or did not aid or abet any other parties in manufacturing intoxicating liquor, it is your duty to give the defendant the benefit of the doubt, and acquit him.”

The particular part of this instruction alleged to be erroneous is as follows:

“But in case you find from the evidence that the state has failed to prove to your satisfaction beyond a reasonable doubt, that said defendant, Jesse Steele, manufactured intoxicating liquors or did not manufacture intoxicating liquors in 'conjunction with others, or did aid or abet any other parties in manufacturing intoxicating liquor, it is your duty to give the defendant the benefit of the doubt, and acquit him.”

It is contended that this instruction is indefinite, vague, contradictory, and tended to- confuse the jury, and to place an unfair burden of proof upon the defendant. We think the instruction is erroneous, and in this case the giving of the same is prejudicial error. It is extremely difficult to fathom just exactly what the court intended to mean by that portion of the instruction last above quoted. Certainly it was not a correct statement of the law, and tended to confuse the jury as to the quantum of proof necessary to authorize a conviction and the nature of the proof necessary, that is, as to the essential elements of the offense. The court told the jury that, in case the state failed to prove beyond a reasonable doubt that the defendant had manufactured whisky, they should acquit the defendant, and also, in case the state failed to prove beyond a reasonable doubt that he did not manufacture intoxicating liquors, they should acquit the defendant, and, in case the state failed to prove beyond a reasonable doubt that the defendant did not aid or abet others in the manufacture of intoxicating liquor, they should acquit the defendant. The statement of these negative propositions tended to make the instruction vague, indefinite, and contradictory to the other portions of the instructions which correctly stated the law. The use of double negatives should not be employed in instructions. The court should confine itself to an affirmative statement of the law in stating the state’s side of the case.

The evidence in this case was entirely circumstantial. Considered in its entirely, we think it is as consistent with the innocence of the defendant as it is w-ith his guilt. The defendant is a substantial farmer of Major county, and it appears that in his attempt- to aid the peace officers of that county in the enforcement of the prohibitory liquor law he was drawn into this prosecution because he had rented part of his land, two miles distant from his home place, to those who were jointly prosecuted with him for this crime, and had sold them some kaffir corn from which the other defendants made this whisky. The defendant explained the sale of this corn to these confessed whiskymakers, and on this trial the other defendants, who Sad pleaded guilty, acknowledged that this defendant had no connection with the making of the whisky, no interest in it, and that they had concealed their' illegal operations from him, and had purchased kaffir porn from him under the pretense of using it for feed for their live stock. When the officers came to this defendant’s home to search it ;they found no whisky, no evidence of the manufacture of whisky, and nothing that would indicate that this defendant was engaged in its manufacture, or had ever been engaged in it. It was then that the defendant disclosed to the officers information that led to the arrest of his codefendants and to the capture of the whisky and still. It'was because the defendant gave this information, and because of the fact that these parties were operating on other premises owned by him some two miles distant from his home, and because the defendant had sold the other defendants material out of which the whisky was probably made, that led to the arrest of defendants. This was the substance of the circumstantial evidence upon which the state relied for a conviction. The defendant took the witness stan'd, and explained his dealings with his codefendants, and his explanation is apparently credible, and clearly exonerates him from any connection whatever with the manufacture of the whisky. His codefendants, who had pleaded guilty, and were serving their sentences, both corroborated the defendant, although it was upon hTs information that they were arrested and the still and whisky discovered.

Undér sucb circumstances we think it would be a plain miscarriage of justice and a detriment to the enforcement of the prohibitory liquor laws of this state should this conviction stand. It is not the policy of the law to convict the substantial citizens of this state on evidence of this character, which at most only discloses, perhaps, a guilty knowledge of the commission of the crime without disclosure of any guilty participation in it. To make the defendant an aider and abettor in the commission of the offense, and- that is the only theory upon which he could have been convicted in this case, there must be some proof of overt acts committed towards its commission by him in conjunction with the other defendants with a guilty knowledge and purpose of aiding them or encouraging them to commit the offense. The circumstantial evidence of the state falls short of such proof.

The judgment of conviction is therefore reversed, and the case remanded to the county court of Major county for further proceedings consistent with this opinion.

BESSEY and DOYLE, JJ., concur.


author: PER CURIAM.

text:
    JIM MOONEY v. STATE.
    No. A-4569.
    Opinion Filed Dec. 3, 1924.
    (230 Pac. 755.)
    Appeal from Pontotoc County Court; Tal Crawford, Judge.
    Jim Mooney was convicted of a violation of the prohibitory liquor law, and he appeals.
    Affirmed.
    Homer T. Carney, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Jim Mooney, was convicted on a charge that he did have in his possession abont one quart of corn whisky with intent to sell the same, and his punishment was fixed at a fine of $50 and 30 days’ confinement in the county jail. He has appealed from the judgment rendered upon such conviction, on the sole ground that the evidence is insufficient to sustain the verdict.

It appears that the state called three or four witnesses, who testified to finding about a gallon of whisky buried in a shed at the defendant’s place, and also of finding a couple of bottles of whisky on his person when arrested.

The defendant offered the testimony of three witnesses to show that another person had bought the whisky found buried from a bootlegger, whose name was unknown. The defendant did not testify.

In our opinion, the evidence was sufficent to sustain the verdict. It was for the jury to determine the credibility oi the witnesses.

The judgment appealed from is therefore affirmed.


text:
    JOE BARNES et al. v. STATE.
    No. A-4575.
    Opinion Filed Dec. 3, 1924.
    (230 Pac. 760.)
    (Syllabus.)
    Intoxicating Liquors — Evidence Sustaining Conviction for Unlawful Manufacture of Whisky. In a prosecution for manufacturing whisky, evidence held to warrant a conviction.
    Appeal from County Court, Latimer County; C. B. Mitchell, Judge.
    Joe Barnes and another were convicted of unlawfully manufacturing whisky, and they appeal.
    Affirmed.

      H. T. Church, for plaintiffs in error.
    George F. Short, Atty. Gen., and J. Roy Orr, Asst. Atty. Gen., for the State.
   DOYLE, J.

Plaintiffs in error, Joe Barnes and Frank Ramer, were jointly tried and convicted on a charge of manufacturing whisky, and the punishment of each fixed at a fine of $50, and confinement in the county jail for 30 days. They haye appealed from the judgment rendered upon such conviction.

The sole question presented is the sufficiency of the evidence to support the verdict. Austin Park, sheriff, and Walter Mitchell, deputy, each testified, near a canyon on the side of a mountain, about half a mile from the road, when the defendants drove by in a wagon, they followed them into the woods. The defendants stopped and took a sack of either sugar or meal out of the wagon, and poured it into a barrel. After watching them for about five minutes the officers appeared; One of the defendants was stirring the contents of the mash in the barrel, and the other was making yeast cake. The sheriff asked them if they had it ready. One of the defendants said “We are caught, and it is no use to rear up about it.” The other said, “We are not guilty until proven.”

The officers found a 30-gallon barrel full of mash, a 10-gallon can, a copper boiler with a hole in the top, a can with dough, and some fruit jars with a very small amount of whis-ky in them. The defendants stated to the officers that somebody took the worm away that morning. It also appeared that there had been a fire under the still that morning.

The defendants offered no evidence, and at the close of the state’s case moved for a directed verdict of acquittal on the ground that the evidence was insufficient to convict them. Which motion was overruled, and exception allowed. The court properly instructed the jury on the charge of manufacturing whisky. The defendants did not ask that the included offense of attempt to manufacture whisky be submitted.

It is contended that the verdict is not sustained by the evidence, and that the trial court erred in overruling the defendant’s motion for a directed verdict. The rule is well settled that, if there is any evidence tending to prove that a defendant has committed the offense charged in the information, the court should submit the case to the jury.

We are of the opinion that the verdict is supported by the evidence. It follows that the motion for a directed verdict was properly overruled.

The judgment is affirmed.

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


text:
    JOHN SCISM v. STATE.
    No. A-4475.
    Opinion Filed Dec. 4, 1924.
    (230 Pac. 941.)
    (Syllabus.)
    Intoxicating Liquors — Evidence Sustaining Conviction for Unlawful Sale. In a prosecution for selling intoxicating liquor, evidence held insufficient to sustain a conviction.
    Appeal from County Court, Roger Mills County; E. E. Tracey, Judge.
    John Seism was convicted of a violation of the prohibitory liquor law, and he appeals.
    Reversed.
    W. H. Mouser, for plaintiff in error.
    George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case charges that in Roger Mills county, on or about the 1st day of March, 1922, the defendant, John Seism, "did then and there unlawfully, knowingly, and willfully sell two gallons of spirituous liquor, to wit, whisky, to one O. F. Tell.”

Upon his trial, the jury returned a verdict of guilty, leaving the punishment to be fixed by the court. August 19, 1922, the court sentenced the defendant to confinement in the county jail for 60 days, and to pay a fine of $300. To reverse the judgment, an appeal was taken by filing in this court, on October 20, 1922, a petition in error with case-made.

While the motion for a new trial and the petition in error each contain various assignments of error, the questions discussed in the brief, and relied upon to secure a reversal, are confined to very narrow limits.

The first contention is that the trial court erred in overruling the defendant’s motion for a continuance when the case was called for trial. The affidavit is in part as follows: That one Harold Bussell is a material witness; that said absent witness was duly subpoenaed to be present at this trial; that defendant expects to prove by said witness that on or about the 1st day of March, 1922, he was at the defendant’s place, when O. F. Yell and another man rode up to where he and John Seism were at work, and was present all the time while they were there and saw them ride away, and that the defendant did not at that time sell to O. F. Yell, or any one else, two gallons of whisky, or any other amount of intoxicating liquor; that the facts set forth are true, and that said evidence cannot be furnished by any other witnesses.

The granting or refusing 'of- a continuance rests in the sound discretion of the trial court, and a ruling of that court will not be reviewed, unless an abuse of discretion is shown. We think there was no error in overruling the motion for a continuance.

It is insisted, that the verdict is not sustained by sufficient evidence. The undisputed facts are that O. F. Yell and Oron Kelly were hunting on horseback and rode into the defendant’s place, and on leaving there went a half mile south to the Blue Ridge schoolhouse, and about 100 yards from the schoolhouse found four half-gallon jars of corn whisky in a “shinnery” patch.

O. F. Yell testified that while there he gave the defendant two checks, for $8 each, in payment of borrowed money. Oron Kelly asked the defendant if he knew where a man could find a drink, and Mr. Seism said a man stopped there and got out, and maybe hid some whisky in the “shinnery” patch; that he did not buy any whisky from the defendant, and neither did Oron Kelly buy any. Harold Russell was present all the time.

Oron Kelly, the second witness for the state, testified that he and Yell were up on the Meridian Lake hunting ducks, and went over to the defendant’s place, and something was said about whisky, and the defendant said, “You might find some near a 'shinnery’ patch” that was about a half a mile from his house: that he saw a car stop there; that Mr. Yell did not buy any whisky from John Seism that day, and he never bought any from him.

Over the defendant’s objection, L. B. Guinn, deputy sheriff, was permitted to testify as follows:

“Q. Did Oscar Yell and Oron Kelly tell you that they had bought whisky from John Seism? A. I heard that they had bought whisky from John Seism, and I went to Yell first, and asked him if he had got some whisky from John Seism; and he asked me if I told it, and had got some whisky, what would they do with him. He told him they would do nothing with him, only have him as a witness, and he said he gave Mr. Seism a check, and Mr. Seism told him where he could find some whisky.”

On the part of the defense, O. F. Yell testified:

“I told Mr. Guinn that I got some whisky in a ‘shinnery’ patch. I do not think I ever told him that I bought any whis-ky from Mr. Seism. More than a month before I borrowed $16 from Mr. Seism at C. B. Cotton’s store, to finish paying for two tires, and I went up there with a check for $8, intending to pay one-half of it, and there decided to finish paying it, and gave him another check for $8. The checks were never paid; my father had taken the money.”

As a witness in his own behalf John Seism testified that he had lived with his family on that farm about 22 years; that he had loaned O. F. Yell $16 at Cotton’s store to pay for two casings that Mr. Cotton had ordered for him; that Mr. Yell and Mr. Kelly came to his place, and Mr. Yell gave him a check for $8, saying that he would pay him one-half of what he owed, and decided to pay it all, and gave him another cheek for $8; that after that Kelly said something about whis-ky, and he told him he saw a ear over south there make two trips to the “shinnery” patch on the Mathew’s place; that the car stopped at the “shinnery” patch about an hour before; that he had no reason to know whether or not the man in the car left whisky there; that he was never in court before. In rebuttal, L. B. Quinn was recalled and testified that Oron Kelly told him that he saw 0. F. Yell give the defendant a check’, and the defendant told him where he would find some whisky.

As a general rule, the state is bound by the testimony of its own witnesses. In this ease the witnesses for the state, not only failed to testify that they purchased whisky from the defendant as charged, but they repeatedly stated that they did not purchase any whisky, and that none was purchased from the defendant in their presence.

Apparently the testimony relied upon by the state to convict in this case was purely hearsay testimony, admitted over tbe defendant’s objection. It needs no argument to show that the testimony of the deputy sheriff, as to statements made by the other two witnesses for the state to him, in the absence of the defendant, was inadmissible and prejudicial to the defendant.

Because the evidence is insufficient to support the verdict, the judgment of the lower court is reversed.

MATSON, P. J., and BÉSSEY, J., concur.


author: BESSEY, J.

text:
    EVERETT E. BEACH v. STATE.
    No. A-4458.
    Opinion Filed July 26, 1924.
    Rehearing Denied Dec. 8, 1924.
    (230 Pac. 758.)
    (Syllabus.)
    1. Appeal and Error — False Pretenses — Fraudulent Intent Gist of Offense of Obtaining Money by Bogus Check — Verdict not Disturbed Where Finding of Such Intent Supported by Competent Evidence. Fraudulent intent is the gist of the offense of obtaining' money by means of a bogus check.
    (a) Where there is competent evidence supporting a finding- of such intent, the verdict of the jury will not be disturbed, because there is some testimony tending to indicate there was no such fraudulent intent.
    2. Evidence — Other Bogus Checks in Prosecution for Passing, Admissible to Show Knowledge, Intent, or System. The admission of other checks given by defendant when he had no funds to meet them was not error, under the circumstances in this case. Such evidence was admissible to show fraudulent intent, guilty knowledge, and a plan or system to obtain money in such manner, and came within the exceptions to the rule that proof of other crimes is not admissible against one charged with a particular single offense.
    3. False Pretenses — Crime of Obtaining Money by Bogus Check, Completed When — Guilt not Affected by Subsequently Securing Debt for Which Bogus Check Passed. The crime of obtaining money by means of the bogus check was. completed at the time the check was uttered and passed, and the fact that the defendant subsequently gave the prosecuting witness security for the debt owing him, by reason of this transaction, does not affect the question of his guilt.

      Appeal from District Court, Logan County; C. C. Smith, Judge.
    Everett E. Beach was convicted of passing a bogus check, and he appeals.
    Affirmed. .
    Lillard & Edwards, for plaintiff in error.
    The Attorney General and J. Roy Orr, Asst. Atty. Gen., for the State.
   BESSEY, J.

Everett E. Beach, plaintiff in error, here designated the defendant, was, by verdict of a jury rendered in the district court of Logan county, on March 15, 1922, found guilty of the crime of passing a bogus cheek. Subsequently, a motion for a new trial was made and overruled, and thereafter the court rendered judgment on the verdict, fixing the punishment of the defendant at imprisonment in the state penitentiary for a term of 18 months.

The record discloses that the defendant, with George Schwake, the prosecuting witness, a cigar salesman, and Oscar Trimm, was interested in selling units or subdivisions of an oil lease; that the defendant from time to time induced the prosecuting witness to cash cheeks drawn on local and on out of town banks for the purpose of paying defendant’s personal expenses, in connection with the sale of these units and to pay the cost of blue prints, stationery, etc. Some of these cheeks were in the cash till, in charge of the prosecuting witness, originally unpaid for want of funds, when the defendant asked for and received $20 in cash for the $20 check here in controversy, drawn and delivered to the prosecuting witness. At this time the prosecuting witness had been 'reimbursed for all prior rejected checks. The payee bank refused payment on the cheek here in controversy, because of insufficient funds on deposit to cover the same.

The evidence of intent to defraud was in part circumstantial. The defendant claimed that the giving of these checks, in the manner and under the circumstances disclosed in the record, was in effect a loan from the prosecuting witness to the defendant, and so understood by both parties; that it was the defendant’s intention to redeem this and other checks so soon as sufficient units were sold to enable him to do so, and that the prosecuting witness so understood it and approved of the transactions at the time; and that therefore there was no intent to defraud the prosecuting witness, or any other person.

There was some slight evidence tending to substantiate this claim of the defendant. The fact that this prosecution was not commenced until months later, after the oil lease enterprise had proved profitless, lends color to the defendant’s claim, and the prosecution may have been instituted chiefly for the purpose of inducing the defendant to make good on this check. On the other hand, the prosecuting witness claims that he was deceived, that the defendant had promised to cease issuing checks when he did not have sufficient funds to meet them, and he assumed at the time he cashed it that the defendant had funds on deposit in the payee bank to pay this particular check. There was evidence to support both theories, and since the jury found against the claim of the defendant on this issue, this court, under the circumstances disclosed by the record, would not be justified in setting aside.the findings of the jury. Fraudulent intent is the gist of this kind of a case. Bennett v. State, 21 Okla. Cr. 27, 204 Pac. 462. And where there is competent evidence to support a finding of such intent, under the statute sometimes known as the "bogus checks” statute, the verdict of the jury will not be disturbed because there is some evidence indicating that there was no fraudulent or evil purpose.

It is urged by defendant that each of the other unpaid checks admitted in evidence represented a distinct and separate offense, if offenses they were, and that evidence as to them was wholly irrelevant and immaterial, in consideration of the charge at bar, and that the introduction of such evidence was highly .prejudicial to the rights of the defendant. The general rule is that, on a prosecution for a particular crime, evidence which tends to show that the accused has committed another similar crime is inadmissible, but there are several well-defined exceptions to this rule; the exceptions being as much recognized as the rule itself. Some of these exceptions are as follows:

(1) Where the nature of the crime is such that guilty knowledge must be proved, evidence is admissible to prove that, at another time and place not too remote, the accused committed or attempted to commit another crime similar to the one charged.

(2) Where the question is whether a certain act was intentional or accidental, evidence to show that the accused intentionally committed similar acts before is relevant to show intent.

(3) Where the crime charged is a part of a plan or system, evidence of other crimes, near to it in time and of similar character, is relevant, as touching the question of intent.

The prosecuting witness .was a cigar salesman, and also interested in the sale of these units. The evidence as shown by the record relative to the facts was explanatory of the intent of the defendant in procuring money on this particular check. Moreover, the evidence of these other transactions was to the advantage of the defendant, rather than otherwise, as tending to show that this particular transaction was in good faith, or at least with the assent of the prosecuting witness, wbo tbe defendant claims had knowledge of all the facts surrounding these transactions. There was no error on the part of the court in permitting this evidence to go to the jury. State v. Rule, 11 Okla. Cr. 237, 144 Pac. 807; Herndon v. State, 16 Okla. Cr. 586, 185 Pac. 705; Winston v. State, 16 Okla. Cr. 648, 185 Pac. 832.

The fact that the defendant, after these transactions, gave the prosecuting witness some kind of security for all indebtedness owed him by the defendant, including this particular check, makes no difference. The crime, if a crime was committed, was completed at the time the check was uttered and passed.

The judgment of the trial court is affirmed.

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


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    LON T. WILSON v. STATE.
    No. A-4355.
    Opinion Filed Dec. 10, 1924.
    (230 Pac. 1118.)
    Appeal from County Court, Custer County; E. J. Lindley, Judge.
    Lon T. Wilson, convicted of unlawfully transporting ■ intoxicating liquors, appeals.
    Affirmed.
    Darnell & LaRue, for plaintiff in error.
   PER CURIAM.

Plaintiff in error, Lon T. Wilson, was convicted on a charge of unlawfully conveying intoxicating liquor, and his punishment fixed at a fine of $150 and confinement in the county jail for 30 days. He has appealed from the judgment rendered upon such conviction, but no brief has been filed or argument made in his behalf in this court. It appears that tbe proof on tbe part of tbe state establishes a strong case against tbe defendant and this proof is undisputed. A careful examination of tbe record discloses no sufficient reason for a reversal of tbe judgment. It is therefore affirmed.


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    MARION GAINES v. STATE.
    No. A-4985.
    Opinion Filed Dec. 10, 1924.
    (230 Pac. 946.)
    (Syllabus.)
    1. Arrest — Arrest Without Warrant — Right of Arrest for Misdemeanor and for Felony Distinguished. Peace officers often lose sight of the distinction between the right to make arrests without a- warrant in felony and misdemeanor cases. If the misdemeanor is not committed in the presence of the officer, the officer should procure a warrant before making the arrest; but a different rule applies where a felony has been committed, though not in the presence of the officer, and there is reasonable cause to believe that the person about to be arrested has committed such felony. Under such circumstances the felon, or suspected felon, may be arrested without a warrant.
    2. Searches and Seizures — Waiver of Search Warrant. The right to immunity from a search and seizure without a search warrant may be waived.
    3. Same — Immunity Applies Only to Unreasonable and Illegal Searches and Seizures. The right to protection and immunity against searches and seizures applies only to unreasonable and illegal searches and seizures.
    4. Arrest — Search of One Legally Arrested Permissible — Search for Narcotic Drugs Thrown Away at Time of Arrest. One legally arrested may be searched for property connected with the offense which may be used as evidence against him, or for weapons or things which might facilitate his escape. This would apply to a search for a package of narcotic drugs thrown away by the person at the time of his arrest.
    Appeal from District Court, Logan County; C. C. Smith, Judge.
    Marion Gaines was convicted of tbe illegal possession of narcotic drugs, and be appeals.
    Affirmed.

      George W. Carry, for plaintiff in error.
    The Attorney General and G. B. Fulton, Asst. Atty. Gen., for the State.
   BESSEY, J.

Marion Gaines, plaintiff in error, here referred to as the defendant, was on the 22d day of September, 1923, in the district court of Logan county, convicted of the unlawful possession of narcotic drugs, and by the verdict of the jury his punishment was fixed at confinement in the penitentiary for a term of five years and to pay a fine of $1,000.

The evidence shows that Tom Boggess, sheriff, Herb Spencer, chief of police of the city of Guthrie, C. E. James, a policeman, and W. M. Murphy, acting upon information received by them, were making a search for the defendant on the streets of Guthrie and, not being able to find him at the place designated, went to the residence of the defendant. The defendant was sitting on the porch, and as the sheriff approached he hastily arose and removed from his vest pocket a small package, and started for the door. The sheriff, sought to detain him, but he passed into the house through the screen door, and threw this package into another room, or closet. The officers later recovered the package, which contained a large number of tablets and capsules of morphine and cocaine. The defendant was placed under arrest and taken to the police station. A search warrant was procured to search the premises for intoxicating liquors and narcotic drugs, which was accordingly done, but no drugs or liquor was found in the search subsequently made. It seems that the sheriff, at the time he and the other officers were endeavoring to find the defendant on the streets of Guthrie, had a search warrant, or a copy of a search warrant, but the record does not disclose its terms or import.

Tbe defendant earnestly contends that the narcotic drugs seized at his residence were procured by an unreasonable and illegal search and seizure, and that the court erred in permitting this evidence to be introduced over the timely objections of the defendant.

The state contends that the arrest and seizure were authorized because the defendant was apprehended and arrested for the commission of an offense in the presence of the officers, and that the arrest and seizure were further justified upon the ground that a felony had been committed and the arresting officers had reasonable grounds for believing that the defendant was the perpetrator.

Section 2471, Comp. St. 1921, provides that an officer may arrest a person without a warrant for a public offense committed or attempted in his presence. This applies to both misdemeanors and felonies. This section also provides that a person may be arrested without a warrant where a felony has in fact been committed and the officer has reasonable cause for believing the person about to be arrested committed it.

Peace officers often lose sight of the distinction between the right to make arrests without a warrant in felony and in misdemeanor cases. If the misdemeanor is not committed in the presence of the officer, the officer should procure a warrant before making the arrest; but a different rule applies where a felony has been committed, though not in the presence of the officer, and there is reasonable cause for believing that the person about to be arrested committed such felony. In this ease the defendant was suspected of having violated the prohibitory law, a misdemeanor. He was also suspected of having violated the narcotic drug law, a felony. Prior to the defendant’s arrest an affidavit had been filed in the county court showing the following:

“Whereas on the 20th day of May, 1923, complaint in writing and on oath was made before me and filed in this court by George W. Partridge, alleging that liquors are being manufactured, kept, and sold by one Marion Gaines, and also narcotic drugs, on lots 18 and 19 in block 84, Guthrie proper, and lots 10, 11, 12, block 83, Guthrie proper, with the intention that the same be sold in violation of law.”

It would seem that the fact that the defendant had been officially accused of illegal possession of narcotic drugs, considered in connection with the conduct of the defendant at the time he was approached by the officers, justified his arrest for the commission of a felony without a warrant. Even if the offense had been a misdemeanor instead of a felony, the arrest without a warrant might still have been justified on the ground that the offense was committed in the presence of the officers.

The record discloses that the defendant probably waived his right to immunity from a search and seizure without a search warrant, as shown by his own testimony. Quoting an excerpt on that point:

“When they drove up I was setting on the porch on the east side of the house, and I seen them coming and I says, ‘Well, there comes the law. I guess they are going to look me over, and I guess I will get a drink of water before they get in,’ and while I was getting the water he came up to the door. And I says, ‘How do you do, Mr. Boggess, do you want in?’ and he said, ‘Yes,’ and I let him in.”

The police officers testified that, as the defendant went into the house, followed by the sheriff and the other officers, he hastily removed something from his jacket pocket and threw it into a closet, and that they recovered this package, and found it to contain a quantity of morphine and cocaine tablets or capsules.

As an explanation of why no search warrant was served at tbe residence of defendant in tbe first instance, we quote from the testimony of tbe sheriff.

"Q. When did you get tbe search warrant? A. I can’t tell you that either, because I don’t know the time of day I went down there. I had a copy of ' this search warrant in my pocket when I went down there, but I intended to look him over on the street; that is where I intended to find him. I had heard he had just got in town.
“Q. But you don’t know just when you got there? A. No. sir.
"Q. After you made the arrest, what was done? A. I took him out in the yard and asked him to stay in the yard. He had a gun lying on the front table. He finally went back in the house, then I had to go back and get him, and brought him over and put him in jail.
"Q. Did you bring the package with you? A. Not then I didn’t. Herb Spencer had it in his pocket.
"Q. After you locked Gaines up you went back down to the house? A. Yes, sir.”

In addition to this Herb Spencer, a policeman, in answer to the question "Did you have a search warrant?” said, "No, sir; I didn’t; the sheriff had one.” We assume that the search warrant was not served because it possibly did not properly designate the place, and that the search warrant subsequently issued was for the purpose of authorizing a further search of the premises to ascertain whether there were other narcotic drugs or intoxicating liquors there.

The right to protection and immunity from searches and seizures applies only to unreasonable and illegal searches and seizures. If it appears in any ease that a person is apprehended in the act of violating the law, he may be arrested and searched without a warrant, and that would not be an unlawful arrest or an unreasonable or illegal search and seizure. If the person the officers are about to arrest has committed a felony, or if a felony has in fact been committed, and the officers have reasonable grounds to believe that the person about to be arrested has committed it, the arrest would be justified, and the search and seizure following would also be justified, to the extent of a search of the person and his immediate belongings.

One legally arrested may be searched for property connected with the offense which may be used as evidence against him, or for weapons or things that might facilitate his escape. This would apply to a search for a package of narcotic drugs thrown away by the person at the time of his arrest. State v. Wills, 91 W. Va. 659, 114 S. E. 261, 24 A. L. R. 1398, and notes.

We hold, therefore, that under all the circumstances shown this was not an illegal arrest or an unreasonable search and seizure, and that the narcotic drugs seized were properly admitted in evidence.

The judgment of the trial court is affirmed.

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


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    TOM WHITE v. STATE.
    No. A-4585.
    Opinion Filed Dec. 10, 1924.
    (230 Pac. 943.)
    (Syllabus.)
    Intoxicating Liquors — Evidence not Sustaining Conviction for Unlawful Manufacture. In a prosecution for manufacturing intoxicating liquor, evidence held insufficient to sustain a verdict and judgment of conviction.
    Appeal from County Court, Adair County; W. M. Martin, Judge.

      Tom White was convicted of unlawfully manufacturing intoxicating liquor, and he appeals.
    Reversed.
    Arnold & Woodruff, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case charges:

“That on or about the 1st day of September, 1922, in Adair county, Okla., the defendants, Tom White, Watt White, Sunday White, Ned Adair, Hummingbird Adair, William Adair, Alex Squirrel, Henry Leach, Grant Feather and Charley Owl, did then and there unlawfully and conjointly, make and manufacture spirituous, vinous, fermented and malt liquor, to wit, about eight gallons of Choctaw beer, a liquid containing as much as one-half of one per centum of alcohol, measured by volume and capable of being used as a beverage, contrary to,” etc.

It appears that the defendants Grant Feather and Sunday White upon arraignment pleaded guilty. Afterward the defendant Watt White pleaded guilty.

A trial resulted in a conviction of appellant, and in pursuance of the verdict he was sentenced to be confined 30 days in the county jail and to pay a fine of $50. To reverse the judgment he appeals.

Of the various assignments of error it is only necessary to consider the one, that the verdict is not sustained by sufficient evidence.

The record shows that the defendants Grant Feather and Sunday White upon arraignment pleaded guilty; afterwards the defendant Watt White pleaded guilty. That at the close of the state’s evidence, on the motion of the county attorney, the court directed a verdict of acquittal for the defendants Alex Squirrel, Henry Leach, and Charley Owl. The evidence shows that four officers found the defendants and others about a mile from the home of the defendant Tom White. Some of them were drinking what the officers called Choctaw beer. Appellant was lying in a drunken sleep.

Charley Fourkiller testified:

“I was constable of Wauhillau township. I saw the defendants half a mile north of Isaac Batt’s place. William Johnson, Roach Young, and Jack Wolf, and I were on the bluff and these men were under the bluff. There was a fire there, and they had a kettle or boiler on this fire when we got down to this place. Tom White was something like 20 steps from the fire down drunk. All of us sampled this stuff, and it was Choctaw beer. It was about 9:30 at night.”

The defendant Grant Feather testified as a witness for the state as follows:

“Q. Do you know anything about that? A. Well, just me, Tom White, Sunday White, and Watt White was all that knew anything about making of it.
“Q. Who made it? A. Me and Sunday White and Watt White, just us three made it.
“Q. Where did you make it? A. About a mile this side of Tom’s at a spring.”

At the close of the state’s evidence, there was a motion by the defendant Tom White for a directed verdict of acquittal on the ground that the evidence was insufficient to sustain a verdict of guilty, and because there was no evidence except that of Grant Feather, an accomplice, tending to connect this defendant with the offense, and this witness testified that no one had anything to do with the making of the liquor in question other than drinking some of it, besides himself, Sunday White, and Watt White; which motion was overruled.

There is no direct evidence to connect this defendant with the making of the liquor in question, and when a conviction is sought on circumstantial evidence alone, the circumstances proved must not only be consistent with each other and with the hypothesis of the defendant’s guilt, but inconsistent with any rational hypothesis other than his guilt. A conviction may not be founded upon mere conjecture or upon probabilities, however strong.

In our opinion the court erred in denying this defendant’s motion for a directed verdict of acquittal.

Because the evidence is insufficient to sustain the verdict the judgment is reversed.

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


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    WILLIAM PALMISANO v. STATE.
    No. A-4692.
    Opinion Filed Dec. 10, 1924.
    (230 Pac. 944.)
    (Syllabus.)
    Larceny — Evidence Insufficient to Show Felonious Taking of Automobile. In a prosecution for larceny of an automobile, evidence held insufficient to show a felonious taking.
    Appeal from District Court, Ottawa County; J. J. Smith, Judge.
    William Palmisano was convicted of larceny and he appeals.
    Reversed.
    D. H. Cotten, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

Plaintiff in error, William Palmisano, was convicted, and in accordance with the verdict of the jury he was sentenced to serve a term of five years’ imprisonment in the penitentiary upon an information charging the theft of an Overland automobile, 1921 model, from the owner, Albert Cole. From such conviction and judgment rendered, February 10, 1923, he appeals.

Plaintiff in error is not represented by counsel in this court and no brief in support of the assignments of error has been filed.

Upon an examination of the record we have reached the conclusion that the judgment should be reversed.. The undisputed facts are that on the 2d day of April, 1923, plaintiff in error and one Frank Thieman left Commerce, Okla., and went to Pittsburg, Kan., there to the home of Albert Cole, owner of the alleged stolen automobile; that evening they returned to Commerce in the automobile in question. The next morning plaintiff in error was arrested at the home of his mother in Commerce where he was fixing a tag on the car.

The conviction is based upon the testimony of Albert Cole given upon the preliminary examination and read from the transcript of his testimony by W. J. Farneman, the court reporter, from a transcript of the evidence as taken by him on the preliminary examination. Albert Cole testified:

“I live at 811 E. Eighth st., Pittsburg, Kan.; I kept my car at 710 E. Ninth st.; the defendant came to my house with Frank Thieman and they were there maybe two hours; they had supper there, I missed my car the next morning about nine o’clock and Monday at noon I was called up and told it had been found. I had a conversation with Mr. Thieman about the car 10 days or 2 weeks before that.”

He then testified as follows:

"Q. What was the substance of the conversation you had with Thieman? A. Well, sir, he asked me if he could take the ear — use the car to drive down in Oklahoma somewhere, I don’t know whether it was Sapnlpa or Okmulgee, one of the two places. He said he was going down in the oil fields to look for a job and he asked me if' I would let him use the car. I says, ‘It is just like this Prank, there is no license on it and if you will get a license you can use it if you will take care of it.’
, “Q. Was there any date or arrangements made about when he should get the car, what was said about that? A. I asked him when he was going to take it up, and he said he wasn’t ready to go yet. He said-‘I will want it some time, but I don’t know when.’ And I says, ‘Any time you want to use it, it will be all right, if you will get a license for it.’
“Q. Then when he came in Saturday night, did he say anything about this ear? A. No-, sir.
“Q. Have you talked to him since that time? A. Yes, sir.”

Cross-examination:

“Q. I will ask you if it is not a fact that Thieman claimed to be a brother-in-law of yours? A. Well, not to me; but I have heard that it has been claimed; yes, sir.
“Q. Isn’t it a fact that he has been living up here in this county, at Commerce or at Picher with a sister-in-law of yours? A. Well, I couldn’t swear to that, but that is what he has told me himself.
“Q. Do you know where he is at this time? A. No, sir.
“Q. The complaint charged Thieman with the theft of this car the same as Palmisano? A. Yes, sir.
“Q. You made the complaint? A. Yes, sir.
“Q. Thieman had loaned you some money that you used in making payments on this ear? A. Yes, sir.
“Q. What amount was that? A. Fifty dollars, it was to make the February and March payments; the monthly payments were $25.
“Q. I believe you stated that you told him he could have the car when he talked with you about it? A. Yes, sir.
“Q. You and he had been rather friendly and intimate, had you not? A. Yes, sir.
“Q. He and Palmisano came to your house on this Saturday night? A. Yes, sir.
“Q. Did the three of you go to town together? A. Yes, sir.
"Q. Where did you leave them? A. Well, I left them on the corner of .Fourth and Broadway, where the Salvation Army man was talking.
“Q. Now, when you talked with him or when he talked with you about using this car, there was some talk between you and he about him not knowing very well how to drive it? A. Yes, sir.
“Q. He told you he would get some one to go with him to drive the car? A. Yes, sir.
“Q. Of course, you told him if he was going to drive the car and use it he would have to see about the license? A. Yes, sir.
“Q. Was there any talk between you as to whether it should have an Oklahoma license or Kansas? A. Well, no talk only he was to get the license. I suppose it would have been Kansas license though.
“Q. You do not of your own knowledge know whether this man Thieman had any talk with your wife about this matter or not? A. I don’t know.
“Q. In view of the conversation you had with Thieman about his using the ear, if he had have asked you for the car that evening you would have told him he could have taken it, wouldn’t you? A. Yes, sir.
“Q. When you missed the ear what did you do? A. I went out to the garage and the people I rent from told me that a man by the name of Grooms stayed there a few days, and had told them he was going to take the car the first chance he got. I believe Punk Grooms, he said he is gone. I went down to the police station, and took this man with me and he told the chief of police this, and I supposed that was where the car was at.
”Q. You suppose then this man they called Grooms was the one that had stolen the ear? A. Yes, sir.
“Q. You had no idea about your friend Thieman taking it or you would not have seen the law, would you? A. No, sir.”

George 0. Gibson, deputy sheriff, testified:

That he saw the plaintiff in error at Commerce, Okla., fooling with this car; there was a license applied for tag on the ear. “I told him to come down and I would look over my files, I thought I had the number of this car as a stolen car. The next day Palmisano said that he and a fellow called Dutch (he did not know his other name) had been staying at Picher and the day before Dutch had hired him to go to Pitts-burg with him and to drive the car back; they ate supper with this man that owned the car and he drove the car back for Dutch; I called up Joplin police station and asked them if they knew of any stolen Overland car, and gave the license number and the engine number; they told me a car of that description had been stolen the night before at Pittsburg, Kan., then I held him, and notified the chief of police of Pittsburg.”

At the close of the state’s evidence counsel for the defendant moved for a directed verdict of acquittal in the form of a demurrer to the evidence, which was overruled and exception allowed.

As a witness in his own behalf plaintiff in error testified that he lived at Commerce with his mother; that Prank Thie-man told him his brother-in-law was going to loan him an Overland car, which he himself had an interest in, to drive down to Oklahoma, and he wanted to learn how to shift the gears; that he told him if he would give $3 and pay his expenses he would go with him and show him how to shift the gears; that Dutch agreed to that and they went to Pittsburg and had supper at his brother-in-law’s, after that all three went down town; then they went back to the house and he told them he would wait for them, they came back about 9 o’clock and Thieman said, “Are you ready to go?” and he said, “Any time you are.” They went to the garage and he backed the car out. On the way back they stopped at Picher where Dutch’s wife was supposed to be and he did not find her and he told Dutch “I will put the car in the garage and you can get your wife and meet me at Commerce.” Thieman said that he was going up to Picher to get his wife, and get his suit case so we could make the trip on down to Sapulpa. After he left George Gibson, deputy sheriff, came to the garage.

It needs no argument to show that the evidence in this case is insufficient to show a felonious taking of the alleged stolen automobile in the state of Kansas, or a felonious possession of the same by the plaintiff in error in Ottawa county. There can be no larceny where a person takes the property of another with the consent of the owner. Here the owner testifies that he had given permission to Frank Thieman to take the automobile to Oklahoma and permitting him to have some person go with him to drive the car, and there is no evidence tending to show that said owner was induced to part with his possession of the automobile by fraud or false pretense. In our opinion there is no evidence upon which the jury could base a finding that the plaintiff in error’s possession of the automobile in question in this state was felonious. Such being the state of the evidence a legal conviction was impossible. It follows that the court should have sustained the motion for a directed verdict of acquittal.

The judgment of the court below is accordingly reversed. The record shows that plaintiff in error was committed to the penitentiary on the 25th day of February, 1923. If this fact had been called to the attention of the court when the appeal was filed, the ease would have been advanced and assigned for submission at the following term of this court.

The warden of the penitentiary will surrender the plaintiff in error to the custody of the sheriff of Ottawa county, who will keep him in custody until discharged therefrom according to law. Mandate forthwith.

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