text:
    KINNEY v. STATE.
    No. A-11051.
    Feb. 8, 1950.
    (214 P. 2d 726.)

      R. O. Swimmer and James R. McKinney, Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen.:, for defendant in error.
   JONES, P. J.

This is an appeal from a conviction and sentence of 30 days in the county jail and a fine of $50, sustained in the county court of Cleveland county, for the unlawful possession of a whisky still.

The first contention is that the information was duplicitous. No demurrer on account of duplicity was filed. Plowever, before the commencement of the trial, counsel for the defendant moved the court to require the state to elect upon which count of the information they were relying for a conviction. Whereupon, the county attorney elected to stand on count one which charged the possession of a whisky still. The court thereupon struck count two from the information. This count alleged that defendant had the unlawful possession of whisky. Before count two of the information was striken, the information was certainly duplicitous;. However, the. striking of count two from the information amounted to an amendment of the information, and after the striking of count two, the information was not duplicitous, but charged only the one offense of possession of a whisky still.

It is next contended that the court erred in admitting evidence of other offenses. This assignment is directed at the admission in evidence of testimony of the officers that they found a still, mash, whisky, numerous kegs and bottles at the place where the still was in operation.

The possession of whisky and the possession of a still are two separate and distinct charges, but the evidence concerning these two in the instant case was so closely connected as to form a part of an entire transaction.

In Doser v. State, 88 Okla. Cr. 299, 203 P. 2d 451, 454, it is held:

“It may be regarded as settled that where the offense charged is so connected with the other offenses sought to be proved as to form a part of an entire transaction, evidence of the latter may be given to show the character of the former.”

It is further contended that the evidence is insufficient to support the conviction. The evidence of the state showed positive identification of defendant as one of three men who were operating a whisky still about 20 miles northeast of Norman in Cleveland county, Okla. The three men, who were observed by the officers when they were operating a still, fled when the officers approached. A truck at the scene of the still had some literature in it addressed to the defendant, which included an ice card and a certificate from the International Harvester Company. One of the officers identified the defendant the next day as being one of the three men who were at the still. In addition, the man who had control of the farm on the land where the still was located testified that he and his wife noticed where the fence had been torn down and somone had entered his place. He was looking for a lost cow and came upon the whisky still in operation. The defendant was there and offered the farmer a quart of whisky. The farmer left and notified the officers who came out and made the raid. The defendant did not testify, but he offered evidence which would tend to establish an alibi for him.

The evidence raised an issue of fact for the determination of the jury. We feel bound by their verdict.

The judgment and sentence of the county court of Cleveland county is affirmed.

BRETT and POWELL, JJ., concur.


source: Caselaw Access Project

author: BRETT, J.

license: Public Domain

text:
    BISHOP v. STATE.
    No. A-11081.
    Feb. 8, 1950.
    (214 P. 2d 971.)
    F. C. Swindell, O. C. Lassiter, Harry L. S. Halley, and Logan Stephenson, Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   BRETT, J.

The defendant was charged, tried, convicted and sentenced on March 30, 1948, to pay a fine of $250 and costs and to serve a term of 30 days in the county jail for being in unlawful possession of 7 pints of whisky and 2 1/5 gallons of gin, contrary to the prohibitory laws of the State of Oklahoma.

The Attorney General has filed a motion to dismiss the appeal for the reason that more than 60 days have elapsed since judgment was rendered and the appeal was perfected in thisi court, alleging that this court lacks jurisdiction to hear said appeal. Subsequent to the filing of the motion to dismiss, the defendant was permitted by this court to supplement the case-made by inserting an order made by the trial court correcting the order of April 10, 1948, to show the same to read “Pete Bishop is hereby given an extension of 60 days over and above the time allowed said defendant of 60 days, allowed by statute” instead of 45 days as appeared in the case-made before the same was corrected to reflect what was actually done. This correction was permitted by order of this court. Thus the appeal wasi lodged within the time allowed by law, and the motion to dismiss is without merit.

It appears on the meritsi, that the defendant on November 14, 1947, owned a 1942 Mercury automobile that had a compartment under the front seat under the floor mat. This compartment would hold about a case of liquor. To gain access to this compartment the front seat had to be pushed back, and the floor mat raised and a metal slide cover pulled back. The officers found the car parked on 6th street of Tulsa between Boston and Cincinnati streets. They searched the car under a valid search warrant, and found a quantity of whisky and gin therein as hereinbefore described. When the defendant appeared he assumed dominion and control of the car and admitted the liquor was his and he was thereupon arrested. The defendant sought to defend on the ground that he and a Mr. Miller had purchased the liquor to take on a hunting trip near Alice, Texas. The record shows that on November 15, 1947, the day following the defendant’s arrest on the charge herein laid, he did buy a hunting license in Austin, Texas. This explanation might have appealed to the jury, had it not been for subsequent disclosures. The value of the defense wasi overcome by the fact that on cross-examination the defendant, formerly an old Texas resident, aware of the liquor situation in Texas, knew that liquor could be bought cheaper in Dallas and in Austin, Texas, than in Oklahoma, all of which places he would pass through getting to Alice, Texas, on his hunting trip. Moreover, this defense was completely overcome on cross-examination when it was developed that the defendant on the day in question, and for some time prior thereto, had a federal liquor dealer’s license. This inquiry under the law was entirely proper. This admission by the defendant brought him within the provisions of Title 37, § 81, O. S. A. 1941, reading as follows, to wit:

“The payment of the special tax required of liquor dealers by the United States by any person within this State, except local agents appointed as hereinbefore provided, shall constitute prima facie evidence of an intention to violate the provisions of this Chapter.”

In construing the foregoing section of the statute it has been repeatedly held that proof of possession of a quantity of intoxicating liquor combined with the possession of a federal retail liquor license, in the absence of a reasonable explanation, is sufficient to sustain a conviction for violation of the prohibitory laws. Gentry v. State, 85 Okla. Cr. 296, 187 P. 2d 1010; Sparks v. State, 77 Okla. Cr. 428, 142 P. 2d 377; Rhoads v. State, 12 Okla. Cr. 522, 159 P. 945; Walker v. State, 11 Okla. Cr. 339, 127 P. 895; Cahn v. State, 10 Okla. Cr. 200, 135 P. 1155, and numerous other cases. Moreover, the finding in excess of one quart of whisky likewise brought the defendant within the provisions of Title 37, § 82, O. S. A. 1941, reading in part as follows, to wit:

“The keeping, in excess of one quart of any spirituous, * * * liquors, * * shall be prima facie evidence of an intention to convey, sell or otherwise dispose of such liquors; * *

This section has likewise been construed many times wherein, in substance, it has been held that the possession of a quantity of liquor prohibited by this section is prima facie evidence of guilt. Edwards v. State, 83 Okla. Cr. 370, 177 P. 2d 131; Stites v. State, 44 Okla. Cr. 92, 279 P. 911; Caffee v. State, 11 Okla. Cr. 485, 148 P. 680, and in numerous other cases.

But the question of whether the defendant had possession of intoxicating liquor with the intent of bartering, selling, conveying or giving away of the same in violation of the prohibitory laws is for the jury. Whitwell v. State, 72 Okla. Cr. 192, 114 P. 2d 489; Edwards v. State, supra; Stites v. State, supra; Stump v. State, 66 Okla. Cr. 391, 92 P. 2d 616, and numerous other cases. This being true the foregoing facts created an issue for the determination of the jury. It is interesting to observe that at no time did the defendant attempt to show by direct proof what his occupation was. Counsel studiously refrained from going into this question. Only by showing that at the time the defendant’s car was located and searched the defendant was then in the Atlas Insurance Company offices purchasing an insurance policy to cover the car (which was offered in evidence) wherein it indirectly appears that his occupation was that of a welder. Counsel did, however, show by direct proof that Mr. Miller’s occupation was that of a brakeman on the railroad. This was a matter that the jury took into consideration, as well as the fact that the defendant was in possession of more than one quart of liquor bought in Oklahoma at an increased price, possessed a federal liquor dealer’s license, possessed an automobile equipped for secreting, hauling and possessing a case of liquor in said car, all of which in light of the defense that the liquor was possessed not for sale but for a hunting trip into Texas, presented an issue of fact to be determined by the jury. There is sufficient evidence to support the jury’s finding of guilt.

It has been repeatedly held that the function of the Criminal Court of Appeals in a case where the sufficiency of the evidence is in question, is limited as ascertaining whether there is a basis in the evidence from which the jury could reasonably conclude that the defendant is guilty. Ray v. State, 86 Okla. Cr. 68, 189 P. 2d 620, and other cases.

The defendant’s contention as to the proposition that the defendant’s reputation was made an issue by the state when the sheriff responded to the question “Q. How much liquor did you find there? A. There was 7 pints and 2 quarts at that particular time”, has some merit since it might be inferred from the answer that the officer had searched the car at some other time. However, such remark of the officer was not reversible error but will be considered in connection with the contention that the punishment was excessive.

The defendant contends that the punishment assessed is excessive. In view of the fact that the record shows that the defendant has never before been convicted of law violations, and because of the small quantity of liquor involved, there is merit in this contention. These facts, considered together with the voluntary remark of the officer hereinabove quoted, convince us that justice requires a modification of the judgment and sentence.

The judgment and sentence is accordingly modified to a fine of $50 and 30 days in jail, and as so modified the judgment and sentence is affirmed.

JONES, P. J., and POWELL, J., concur.


author: POWELL, J.

text:
    MOORE v. STATE.
    No. A-11098.
    Feb. 8, 1950.
    (214 P. 2d 966.)
    Logan Stephenson, Harry L. S. Halley, F. C. Swindell, O. C. Lassister, and Earl Truesdell, Jr., Tulsa, for plaintiff in error.

      Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   POWELL, J.

The defendant, Charles Henry Moore, was charged in the court of common pleas of Tulsa county with the crime of driving a motor vehicle while under the influence of intoxicating liquor, was tried to a jury, convicted and sentenced to pay a fine of $50. From this judgment and sentence he has appealed.

For reversal nine assignments of error are set out in petition in error, though in brief filed the case is argued under three propositions or specifications of error.

We deem it desirable, prior to taking up the specifications of error, to briefly review the evidence.

On behalf of the state the highway patrolmen making the arrest testified that they were driving west along IJ. S. Highway 66 and met defendant about eight miles east of Tulsa about 1 o’clock a. m., December 24, 1947; that defendant was driving a trailer truck east at a speed of about 30 or 35 miles an hour, but that they noticed the truck swerving, and when defendant drove across a little culvert he crossed the center line; that when they met he forced them to drive off on the shoulder to their right and they then turned around and followed defendant, and that he would drive his truck off the pavement onto his right and then back on the pavement, and would cross the center line at times; that they drove up and instructed him to stop and that when he stopped they removed him from the cab; that he had a driver’s license and expense money for his trip, gave them the name of his employer, information concerning his destination, etc. But they testified that his breath smelled of whisky and that he staggered when he walked, so that they arrested the defendant and took him to the county jail in Tulsa. That one of the officers found a pint bottle half full of whisky in the cab of the truck; that defendant admitted that he had been drinking, at home and out of that bottle; that he gave them no trouble, wanted them to contact his employer, and gave them his employer’s telephone number.

Defendant testified that he was employed as a truck driver for the Wilson Trucking Co. of Tulsa, Olda., in oil field trucking, that he was instructed by his employer on the night of December 23-24, 1947, to make a drive to a point in the State of Missouri, near St. Louis; that he had hauled a load of pumping units from St. Louis to Seminole and had just gotten in from Seminole and received the order to proceed at once to Selma City, Mo., for another load of equipment, other drivers not being available; that he was tired and sleepy, though ready to go, but that his wife wanted him to take some Christmas presents out from Tulsa to his sister, who lived near Turley; that he and his wife drove out to his sister’s and stayed about two or three hours, ate supper there, and that he had two or three drinks after supper; that he was not drunk; that around 10:30 p. m., he drove his wife and baby to 610 W. Archer, Tulsa, and then started on his trip; that he drove about 30 to 35 miles per hour after leaving Tulsa; that 6% to 7 miles east on U. S. Highway 66 two highway patrolmen drove up by the side of his truck and ordered him to stop and that he did so. He denied drinking any after leaving his sister’s, denied hearing the siren of the patrol car and denied any knowledge of a pint bottle half full of whisky one of the officers testified was taken from the cab of defendant’s truck.

T. E. Wilson, defendant’s employer, was used as a character witness and testified that defendant’s reputation in the community in which he lived was good. Defendant offered the testimony of his wife to show that he was not visibly under the influence of liquor when he left home, but the attorneys did not qualify her to give any opinion, and they failed to show by her what his actions might have been.

In an effort to show that he was acting in a rational manner on arrival at the jail, defendant called the jailer as a witness who testified that when he checked the defendant in that defendant gave him the telephone number of his employer and asked" him to notify his employer the location of the truck, and that he would have to get another driver, defendant being in jail.

Under specification of error No. 1 it is argued that the court erred in giving Instruction No. 4, which is as follows:

“You are instructed that by the term ‘reasonable doubt’ is not meant every doubt, but a doutt based on reason and for which a good or fair reason can be given. When the evidence satisfies the jury to a moral certainty, a certainty that satisfies the reason and judgment, such a certainty as would cause an ordinary prudent person to act affirmatively in the most important affairs of life, then all reasonable doubt is removed.” (Italics ours.)

We are at a loss to understand why the trial court gave the instruction complained of when such an instruction has been condemned in this jurisdiction from territorial days on to the present time. The first case reported in the Oklahoma Criminal Reports and being Abbott v. Territory, 1 Okla. Cr. 1, 94 P. 179, 16 L.R.A., N.S., 260, 129 Am. St. Rep. 818, is an opinion by Williams, C. J., (1908); basic reasons for the rule were detailed, and it was held:

“An instruction which states ‘by the term “reasonable doubt” is meant a doubt that has a reason for it; it is a doubt you can give a reason for’ — was erroneous, and is cause for reversal of the judgment.”

See, also: Gibbons v. Territory, 1 Okla. Cr. 198, 96 P. 446; Price v. State, 1 Okla. Cr. 358, 98 P. 447; Reeves v. Territory, 2 Okla. Cr. 82, 99 P. 1021; Gragg v. State, 3 Okla. Cr. 409, 106 P. 350; Morgan v. State, 7 Okla. Cr. 45, 121 P. 1088; Harris v. State, 10 Okla. Cr. 417, 137 P. 365, 139 P. 846; Gransden v. State, 12 Okla. Cr. 417, 158 P. 157; Soper v. State, 22 Okla. Cr. 27, 208 P. 1044; Hammons v. State, 80 Okla. Cr. 33, 156 P. 2d 379.

The Supreme Court of Virginia seems to have had this question before it for the first time only in 1937, and leading cases from various jurisdictions, both for and against the rule, were listed, and that court approved the rule as announced in Abbott v. Territory, supra. See Owens v. Commonwealth, 186 Va. 689, 43 S. E. 2d 895.

In Pritchett v. State, 1943, 78 Okla. Cr. 67, 143 P. 2d 622, 626, being an appeal from the same court as the within case, this court said:

“We, however, call attention to the fact that the court in this case, in instructing the jury, undertook to give a definition of 'reasonable doubt.’ This court from its earliest decisions has advised against this practice, * * *” (citing cases) “No exception was taken to the giving of this instruction, but if there had been, it would have been necessary to reverse this case for that reason, because of the character of this instruction.”

See, also, Nelson v. State, 5 Okla. Cr. 368, 144 P. 1124; Gransden v. State, 12 Okla. Cr. 417, 158 P. 157; Mayfield v. State, 17 Okla. Cr. 503, 190 P. 276; Choate v. State, 19 Okla. Cr. 169, 197 P. 1060; Burns v. State, 22 Okla. Cr. 151, 210 P. 302; Richard v. State, 24 Okla. Cr. 107, 216 P. 484.

A review of the authorities discloses that there have been a number of cases where this court gave an instruction covering reasonable doubt, and where the case was not reversed for that reason. In a number of instances this court approved the actual instruction defining reasonable doubt. See opinions by Judges Owen, Furman, Armstrong and Matson, respectively, and being: Chandler v. State, 3 Okla. Cr. 254, 105 P. 375, 107 P. 735, McDaniel v. State, 8 Okla. Cr. 209, 127 P. 358, Scribner v. State, 11 Okla. Cr. 189, 144 P. 626, and Burns v. State, supra.

In spite of the outcome in the above cases, this court has said that the better practice is to not give the instruction at all, even though requested to do so by the defendant. See Wise v. State, 34 Okla. Cr. 284, 246 P. 656, and Andres v. State, 51 Okla. Cr. 229, 1 P. 2d 178.

In a number of cases where an erroneous definition was given no exceptions were saved. This court has held that erroneous instructions, to be the basis for error, must be excepted to. Eccleston v. State, 12 Okla. Cr. 106, 152 P. 337, and Hammons v. State, supra.

In several other cases, though the giving of the instruction on reasonable doubt was criticized, the cases were not reversed because the court thought “the guilt of the defendant was so clear and palpable from the evidence that no question of doubt could arise.” See: Gransden v. State, supra [12 Okla. Cr. 417, 158 P. 162], and Burns v. State, supra, citing Sec. 6005, Rev. Laws 1910, being Tit. 22 O. S. A. § 1068, the “harmless error” statute.

The question here, then, is, does the record present a case so clear as to leave no doubt as to the guilt of the defendant? There is evidence on behalf of the state, standing alone, that would support the conviction. However, there is sufficient evidence on behalf of the defendant, if believed by the jury, to have justified the jury in finding for the defendant. Clearly, there must have been doubt in the minds of the jurors or else the penalty would not have been so. light. The instruction given, in effect, directs the jury to find the defendant guilty of the crime charged, unless they entertain a reasonable doubt arising out of the evidence, for which the jury are able to give a reason. It is evident that this case does not come within one of the exceptions where this court would be justified in affirming the case in spite of the erroneous instruction given.

The defendant next argues that the trial judge committed error in denying the defendant the right to cross-examination of the state’s witnesses as to the method by which they arrived at their opinion that defendant was under the influence of intoxicating liquor.

Counsel for defendant attempted to cross-examine the state’s witnesses as to whether blood tests had been made of defendant to determine whether or not he had alcohol in his system. There was no contention on the part of the state that such tests were made, there is no statute requiring such tests, and the defendant had admitted that a short time prior he had taken two or three drinks of whisky. We have examined the testimony carefully and find no error on the part of the court in his rulings in this regard.

Counsel contends that the trial court erred by orally instructing the jury. During his argument to the jury counsel for defendant made some argument about the state failing to give the defendant a blood test to determine the amount of alcohol in his system, but such argument was not taken down by the court reporter and preserved. However, the following was taken down:

“Ry the Court: Counsel for the defendant has argued that there was no blood test, or other test taken by this man to determine whether he had alcohol in his system, and such statement should not have been made and is not evidence in this case, for the reason that under the laws of the State of Oklahoma, no such tests are required to be made, and such statements: and testimony is improper.
“Mr. Halley: The defendant excepts to the remarks of the Court and now moves for a mistrial, on the grounds that the statement of the Court to the jury is not the law of this State, and the State of Oklahoma, and we ask that this jury be discharged and a mis-trial granted herein.
“The Court: Gentlemen of the Jury, you are instructed that the arguments and statements of counsel in this case are not to be considered as evidence, and counsel for defendant is asked to not make such arguments and such statements in the presence of the jury.”

No exceptions were taken to the instruction or admonition to the jury on the specific ground that it was orally given, and for such reason the instruction will be examined only for fundamental error. Howard v. State, 39 Okla. Cr. 336, 265 P. 149.

From an examination of the record it is clear that there was nothing in the conduct or remarks of the trial judge which in any way prejudiced the rights of the defendant.

In this case it is evident that the finding of the half-full pint bottle of whisky was incident to a lawful arrest, and that no search warrant was necessary. The whisky was not introduced in evidence. The court properly overruled the motion to suppress the evidence of the highway patrolmen concerning the whisky. Farmer v. State, 86 Okla. Cr. 308, 192 P. 2d 716.

By reason of the erroneous instruction covering reasonable doubt, which was properly excepted to, the judgment of the court below is reversed, and the cause remanded with directions to grant a new trial.

JONES, P. J., and BRETT, J., concur.


author: JONES, P. J.

text:
    CHAMBLESS v. STATE.
    No. A-11057.
    Feb. 15, 1950.
    (214 P. 2d 947.)

      Dave Tant and Thad Klutts, Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. G-en., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Orval Lindsey Chambless, was charged by an information filed in the district court of Oklahoma county, with the crime of murder, in which said information it is alleged that on January 8, 1947, the said defendant did unlawfully kill one Wilbert Charles Eltzroth.

Upon trial to a jury, the defendant was found guilty of manslaughter in the second degree with the punishment left to the court. The defendant was thereupon sentenced to serve three years in the State Penitentiary, and has appealed.

The deceased was shot at the home of the defendant in Oklahoma City, about 6:30 a. m., and died about 24 hours later in Wesley hospital. The defendant admitted shooting deceased, hut contended that it was an accident.

For a reversal of the conviction, the following propositions are presented:

1. The evidence is insufficient to support the verdict.

2. The court erred in permitting the state to cross-examine its witness, Eobert Scott.

3. The court erred in permitting the defendant to be cross-examined concerning alleged police court convictions.

4. The court erred in inquiring of the jury during its deliberations relative to its numerical division.

There is little dispute in the evidence. The state necessarily had to rely upon witnesses which were very friendly to the defendant. The proof showed that the defendant Chambless, the deceased Eltzroth, Stella Orrell, Eobert Scott, and Mary Lou Smith, a daughter of Stella Orrell, met at the Golden Pheasant cafe in Oklahoma City, about 2 a. m. on January 7, 1947. Eltzroth had been drinking. Stella Orrell and the defendant came into the cafe together. All of the parties had been acquainted for over a year. The Golden Pheasant cafe closed about 3 a. m., and the parties went across the street to Bishop’s waffle house. There Eobert Scott and Eltzroth got into an argument, and their talk became so loud that the cashier of the cafe told them to quiet down or leave; the party then left to go to Chambless’ house at 2914 Northwest 17th street in Oklahoma City. Chambless, Mrs. Orrell, Mary Lou Smith, and Scott got in the car of Chambless. The deceased, who had been drinking heavily, drove his own automobile. On the way to the Chambless home, the people in the Chambless car left the daughter of Mrs. Orrell at her apartment. After, arriving at the Chambless home, the parties had a few more drinks of intoxicating liquor (a picture of the livingroom of Chambless’ home, taken early the next morning after the homicide by the police photographer, showed two empty pint whisky bottles sitting on a tray and three quart-size bottles of either whisky or brandy, two of them partially filled sitting on the floor and another on a dressing table).

Scott, Mrs. Orrell, and the defendant, all testified that the conversation was friendly for several minutes, but that later Eltzroth and Scott got into an argument; that one word led to another until finally Eltzroth jumped out of his chair and said to Scott, “Co ahead and pull your knife” and then patted himself on the pocket and said, “I’ve got this and I will blow your brains out”; that Chambless told the deceased to sit down, and the deceased took his seat; that later Eltzroth commenced arguing again with Scott, at which time the defendant told him that if he had a gun to take it outside and put it on the porch, or go put it in his car, or leave.

As to what then occurred, Scott testified:

“Q. Then what happened? A. Bill told him he didn’t have to do either one. Q. What did Bill do then when he said he didn’t have to do either one? A. He said he got it for protection and he wasn’t afraid to use it; that is what he got it for to carry, and he didn’t intend to put it in his car. Q. Then did Bill go back and sit down? A. He sat down about twenty-five or thirty times. Q. Sat up and down about 25 or 30 times? A. Just up and down. Q. Then what happened? A. Mr., Chambless stepped over the coffee table, or jumped over it, as it was not tall, probably stepped over it, and started toward the bedroom-bathroom door, which is very close together. Q. Did he say anything when he did that? A. Well, he told Bill he would have to put the gun out, and Bill said he didn’t have to do no such thing. He said ‘That leaves me only one thing.’ So, he went over to the bathroom — went to the bedroom door rather, I believe it is, Chambless said, ‘that only leaves me one thing’ he said, ‘there is only one out then,’ or something to that effect.”

Scott further testified that Chambless stepped through the bedroom door and that Bill Eltzroth started following after him; that when Eltzroth got in the door, the shot was fired.

He further testified:

“Q. What was Bill doing when the shot was fired? A. Well, I couldn’t see nothing but his back. Q. What was he doing? A. He was — all I could tell, was just looking at his back, I couldn’t say that he was doing anything. Q. He was not doing anything? A. He was not doing anything with his back. I don’t know what he was doing with his hands because I couldn’t see them. Q. How many shots were fired? A. Only one. Q. Just one. What happened to Bill when that shot was fired? A. He fell. Q. You and Bill had had lots of arguments, hadn’t you? A. Yes, sir. Q. The fact of the matter is every time he started drinking you argued, didn’t you? A. Just about, yesi, sir. Q. Did you ever have any trouble besides argument? A. No, sir. Q, Did you ever see Bill Eltzroth with a gun? A. Not unless he had one that night.”

After the shooting occurred, Eltzroth was taken to Wesley hospital in Chambless’ automobile. The defendant and other parties gave blood transfusions, but Eltzroth died about 24 hours later.

Mrs. Orrell and Mrs. Esther Blair testified for the defendant that the deceased, just shortly before his death, told them at the hospital that he was sorry this had to happen and that it was an accident; that he did not blame the defendant.

On cross-examination of Mrs. Blair, she admitted that when she was questioned by the officers on January 11th in the office of the county attorney, she did not relate the statement which Eltzroth had m'ade to her; and defendant admitted that Mrs. Orrell stayed with him, although not married to him, and that they had their names listed as Orval and Stella Chambless on the mailbox in front of the Chambless home.

Chambless testified substantially the same as Scott and Mrs. Orrell concerning the events that transpired prior to the shooting. He testified that he was afraid that Eltzroth would shoot somebody and that he kept patting his side to indicate that he had a gun.

As to the actual circumstances of the shooting, the defendant testified on direct examination as follows :

“So, he started arguing with Bob again and patting his pocket and arguing. I think all together I asked him four or five times to leave and I told him the last time, ‘I am not kidding, Bill, I mean it, it has gone far enough.’ He said, ‘No; I am going to see this damn thing to an end if I have to kill every son of a bitch in this, room.’ ‘Bill’, I said, ‘You don’t leave a fellow much choice, do you?’ At that time he got up out of his chair and I jumped across the table. Well, in line between where I was sitting and the door way there is a bedroom I should judge it is four, four and a half, maybe five feet from where he was sitting, as I went by I hit him almost hard enough to knock him into the wall. Q. You say you hit him? A. Ran into him. Q. You didn’t attack him with your fists? A. No, it looked like he ran out there to grab hold of me, but he never made much effort to grab me and asi I went through the door I grabbed to the door kind of slammed it behind me.
“I looked down there and I seen that rifle lying underneath the edge of the bed, and so I thought I would pick that up, reopen the door and I didn’t know Bill was right on top of me then. I just opened the door, spoke to him through there and told him ‘Now you get out of my house if you are going to act up like that.’ Q. (By Mr. Lipe) What? I couldn’t understand that? A. ‘Get on out of my house if you are going to act up like that.’ That is what I had in mind, but I raised the gun up started out like this and he is right on me, but he runs into it pushes me back on the bed and then I came forward again, he reaches out momentarily took hold of the end of the gun and jerked it and it was happening pretty fast then. I jerked back, I believe he jerked it twice and when I jerked it back the second time it went off and when it did it scared me and I took the gun and threw it back over around my side over my shoulder or something, I threw it towards the bed, and I didn’t touch it. No one touched it since then. I don’t know where they found it but after he started falling to his knees, he said ‘Lindsey, why did you do that?’ I said, ‘My God, Bill that was an accident. I had no intention of doing that.’ ”

On cross-examination he testified:

“Q. Where was Bill Eltzroth when you got up to go in to get the gun? A. That was one of the times when he was sitting down. Q. He was sitting down when you got up to go in to get the gun, is that right? A. He had just set down about whenever I started to get out of my seat on the divan there. He started right out. Q. Then just tell me again what happened, from the time you were sitting on the divan, on the east side of the divan from then until you killed him? A. I jumped up — I jumped the coffee table — well, jumped and stepped semi over it and started for the bedroom, he started at the time for me to follow me or something, and just after I muttered, ‘You don’t leave a fellow much choice’— Q. Take your hand away, please, I can’t hear you? A. Just after I said, ‘You don’t leave a fellow much choice,’ why I said, ‘The best thing you can do is to get on out the door and let us alone. You have made enough trouble here tonight/ I was mumbling that as I went through loud enough for him to hear and when I got through there and glanced down there and seen that rifle I jerked it up with the intention of bluffing him out of the house.”

None of the witnesses for either the state or the defendant saw the deceased with a gun the night of the fatal shooting. Robert Scott who had roomed with the deceased for several months admitted that Eltzroth did not own a gun. He further testified that Eltzroth had become an increasingly harder drinker, and that when he was drunk, he was quarrelsome.

The police officers testified to the investigation which they made and identified certain pictures of the interior of the home of defendant which were taken by the police photographer the next morning after the shooting occurred.

The officers did not find a gun at the home of defendant except the rifle which was used by the defendant, and the evidence showed that no gun was found on the deceased. The physical fact that deceased was actually unarmed probably influenced the jury to disbelieve the statement of defendant and his friends that Eltzroth continually patted his coat pocket and claimed to have a pistol.

It should be borne in mind that the defendant was convicted of manslaughter in the second degree, which meant that the jury found that the killing of Eltzroth was because of the culpable negligence of the defendant. Under the defendant’s own testimony, the jury could reasonably have concluded that he was culpably negligent in the handling of the loaded .32 calibre Winchester rifle around a drunk person. The policeman and other witnesses all testified that the defendant did not appear to be drunk. The defendant had the rifle in his hands. It was a lever action hammer gun which could not be discharged until the hammer was pulled back to a firing position. The defendant said the deceased grabbed hold of the end of the barrel and jerked. If he did, he certainly was barehanded. It may be true that defendant seized the loaded rifle for the. purpose of attempting to bluff the deceased into leaving the house, but, under all the facts and circumstances of the case, it would appear that the jury was justified in concluding that the death of Eltzroth was caused by the culpable negligence in which the defendant handled the deadly weapon.

The language used by this court in disposing of a similar contention in the case of Hovis v. State, 83 Okla. Cr. 299, 176 P. 2d 833, 836, is likewise applicable to this case. It was therein stated:

“In the case of State v. Gallagher, 4 Wash. 2d 437, 103 P. 2d 1100, it is stated :
“ ‘Accused’s killing of deceased by the use of more force than was necessary in attempting to expel deceased from accused’s home would constitute “manslaughter”, in the absence of justification or excuse.’
22 O. S. 1941 § 745 provides:
“ ‘Upon a trial for murder, the commission of the homicide by the defendant being proven, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable.’
“In this case, the Idling of deceased is admitted. The proof of the state did not show that the defendant was justified in taking the life of the deceased. When the defendant under this statute seeks to prove circumstances of mitigation or that justify or excuse his act, it generally raises an issue of fact for the determination of the jury.”

It is next contended that the court erred in permitting the prosecution to cross-examine the witness, Robert Scott. Throughout all of the direct testimony and cross-examination of Scott, it was clearly apparent that he was friendly to the accused. On cross-examination, Scott had testified that there had never been any trouble prior to the night of the fatal difficulty between Chambless and Eltzroth, and that they had never had any quarrels or hard feelings. On redirect examination, the prosecutor asked concerning a fight allegedly had between Chambless and Eltzroth the preceding summer, and Scott answered that he had never seen or heard of such a fight. The assistant county attorney then stated:

“Mr. Lipe: The state pleads surprise and asks permission of the court to cross-examine on that statement, based on the testimony he made before the Criminal Court of Appeals. Mr. Tant: We object to that. He is not allowed to cross-examine his own witness. He put him on the stand. (Consultation between court and counsel.) The Court: The objection is overruled with exceptions. Q. (By Mr. Lipe) Now, I will ask you if you were not asked this question ‘Did you know anything about the fight they had last summer?’ Mr. Tant: We make the same objection, incompetent, irrelevant and immaterial, prejudicial and not proper redirect examination. The Court: Overruled with exceptions. Q. (By Mr. Lipe) And you answered the question, ‘Heard about it but I didn’t see it.’ Mr. Tant: We make the same objection to that, hearsay. The Court: Overruled with exception. Q. (By Mr. Lipe) Did you so testify before the Criminal Court of Appeals? A. Yes, sir.”

Ordinarily, a party is not allowed to ask leading questions, nor cross-examine a witness which he places on a stand. However, where the witness is hostile and the party placing him on the stand can make a showing that he is surprised at the testimony of the witness, the court within its discretion, may grant permission to cross-examine the witness.

In Carroll v. State, 55 Okla. Cr. 197, 28 P. 2d 588, 590, this Court stated:

“This court has held in substance that when a party has been deceived in placing a witness upon the stand, believing that the witness will testify to facts favorable to such party, and the witness upon the stand testifies to facts injurious to said party and conflicting with previous statements made by such witness, it would be a perversion of justice to deny such party the right to introduce in evidence statements made by such witness conflicting with the testimony given. This may be done upon the ground of surprise to explain the action of the party in placing the witness upon the stand and to destroy the injurious effects of such testimony. Sturgis v. State, 2 Okla. Cr. [362] 364, 102 P. 57; Paris v. U. S., 5 Okla. Cr. 601, 115 P. 373; Foreman v. State, 38 Okla. Cr. 50, 259 P. 176; Donahue v. State, 38 Okla. Cr. 87, 259 P. 179.
“Under the circumstances disclosed by this record and upon the statement of the county attorney that he was surprised at the testimony given by the witness at the trial, it was permissible and not an abuse of discretion upon the part of the trial court to permit the county attorney to impeach his own witness, and the introduction of the statement made by this witness before the justice of the peace was not prejudicially erroneous.”

As to the next proposition concerning the cross-examination of the defendant concerning violations of municipal ordinances, the record discloses that defendant testified to having served sentences in the Granite Reformatory for burglary, in the U. S. Penitentiary at Leavenworth, Kansas, for violation of the Dyer Act, 18 U.S.C.A. §§ 2311-2313, and again for violation of the internal revenue laws; that he had been convicted on two different occasions in Oklahoma county for the unlawful possession of whisky; and the portion of the evidence to which this objection is directed was the cross-examination of the defendant as to two police court convictions in Oklahoma City, for the illegal possession of whisky. We have had occasion to pass squarely upon this point.

In Wheatley v. State, 77 Okla. Cr. 122, 139 P. 2d 809, the syllabus of this case reads:

“1. County attorney may not inquire of defendant on cross-examination as to petty convictions in municipal court where the same do not constitute offenses under the state law.
“2. County attorney may inquire of defendant on cross-examination, for the purpose of affecting his credibility, as to his convictions in police court for violation of municipal ordinances prohibiting the possession or sale of intoxicating liquors as the same constitute offenses under the state law and are crimes within contemplation of statute. 12 O. S. 1941 § 381.”

It is asserted that the trial court committed reversible error in recalling the jury to the courtroom after it had been deliberating for some time, and there inquiring of them how they stood numerically.

The record on this point is as follows:

‘‘The Court:
“Let the record show that the jury is present in open court, the defendant present and the State is present by the Assistant County Attorney, and the question is asked, ‘Have you arrived at a verdict?’ and the answer is, ‘We have not.’
“Now gentlemen, without stating how you stand, that is whether in favor of the plaintiff or the defendant, that is to say, for the State or the Defendant, can you tell me how you stand numerically without indicating which way you preponderate.
“The Foreman: The final vote was 10 to 2.
“The Court: There is nothing I can do but ask you to resume your deliberation. Don’t you think it is possible you may be able to arrive at a verdict?
“The Foreman: Personally, I do not.
“The Court: You understand that the fact that I asked you to go back is only because the law contemplates that you shall do your very level best to arrive at some verdict in the case, and I am compelled to ask you to go back for further deliberations.”

Such conduct of the trial court did not amount to prejudicial error. Montgomery v. State, 19 Okla. Cr. 224, 199 P. 222.

The judgment and sentence of the district court of Oklahoma county is affirmed.

BRETT and POWELL, JJ., concur.


text:
    HILYARD v. STATE.
    No. A-11074.
    Feb. 15, 1950.
    (214 P. 2d 953.)

      Garrett & Garrett, Muskogee, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   POWELL, J.

The defendant, Dewey Hilyard, was charged by information filed in the district court of Muskogee county with the crime of grand larceny, was tried before a jury, convicted, and his punishment fixed at imprisonment in the State Penitentiary for a term of five years. Appeal has been perfected to this court.

The evidence on the part of the state to support the conviction of the defendant was purely circumstantial. The prosecuting witness, J. H. Beasley, testified that he was in the steel erection and construction business in Muskogee, that he had lived there since 1943, on Elmira street; that he had $19,170 in a two or two-and-a-half inch pipe, 18 inches to two feet long, capped at each end; that the pipe was in the attic of his home four or five feet in an easterly direction from the opening in the ceiling to the attic, was between the rafters and on the insulation, with an insulation board over it; that the attic opening was down into a closet in the south bedroom; that the money was in bills: ones, fives, tens, twenties and hundreds. Witness further testified that he placed the money there in two or three trips, and that he last saw the money the latter part of August, or first part of September, 1946; that he first missed the money December 14, 1946; that he kept a safety deposit box at both the First National Bank and at the Commercial National Bank, in Muskogee and no member of his family knew he had any money in his attic,. He testified that it was getting dark on December 14, 1946, when he first missed his money. He reported his loss to the police that night, and he and Mr. Goad, who was operating the Standard Plumbing Company, and an officer from the Muskogee Police Department went to Tulsa, Oklahoma City, and back into Muskogee looking for Dewey Hilyard. That Dewey Hilyard was the plumber who had been in his attic in connection with the installation of a heater.

Mrs. J. II. Beasley testified that on November 7,1946, she ’phoned the Standard Plumbing Company, Muskogee, to send ont a plumber to install a heater in a bedroom of her home, and they sent Dewey Hilyard; that he got there in the middle of the afternoon and stayed until 5 o’clock; that he came back the next morning about 8 o’clock; that she left him there alone about 11 o’clock in the morning and does not know when he finished; that he had a ladder to get up and down through the closet, which was in the south bedroom; that the back door had a lock that would lock when the door was closed, and when she returned home it was locked; that an electrician was there for about 15 or 20 minutes before she left, but did not go into the attic. Witness testified that she had never seen the gas pipe in question and did not know that her husband had any money hidden in the attic. She testified that her husband and the defendant plumber were the only persons she ever knew going into the attic.

Elvin Goad testified that he had lived in Muskogee since 1928, and was engaged in the plumbing since 1928, and was engaged in the plumbing business and was operating the Standard Plumbing Company in November, 1946, and that the defendant, Dewey Hilyard, was one of his employees; that in answer to a call for a plumber he sent him to 2124 Elmira, the home of J. H. Beasley, to do some work. That Hilyard had been working for Mm about six months; that he worked for him for two days after completing the Beasley job; later he testified that his pay-roll record indicated November 8, 1946, to be the last day defendant worked. That Hilyard left without notice to him, but two or three weeks later did a job on west Okmulgee street, at John Bonicelli’s drive-in. He testified that the type heater that was installed in the Beasley home required the plumber to go into the attic. That some time after Hilyard did the work, Mr. Beasley reported to witness the loss of the money, and he went with Beasley trying to locate Hilyard. On cross-examination witness testified that defendant was then in his employment as a plumber, and had been since in September, 1947; that a week after Hilyard left following the Beasley job, witness found out that defendant had been called to Oklahoma City due to the death of some member of his family; that his pay was $2 per hour, with time and a half for work over 40 hours per week. Witness further testified that he knew that defendant operated some beer joints on the side, and had been picked up by the officers for selling or hauling whisky and had been fined for being drunk. Witness testified that he had five plumbers working for him.

Houston Jackson, detective for the city of Muskogee, testified that in December, 1946, J. H. Beasley came to the police station and reported the loss of a large sum of money, somewhere around $19,000 or $20,000; that he had Hilyard in jail on the 9th or 10th of December investigating him concerning his possession of a 1941 Cadillac car, but he had been released just prior to the reported theft by Mr. Beasley. That Hilyard was arrested the day after the lossi was reported; that Hilyard had told him that he purchased the Cadillac in Ohio, paying $3,250 for the same, and a check-up with the Ohio authorities proved this to be correct. That Hilyard told him he had the money to pay for the car by reason of the sale of a “beer joint” on North Main for $5,000, one on South Main for $1,500, and a cafe for $1,500, the sales having been made about a year before the car purchase. The defendant stated that he decided to go to Ohio to see his folks, took his wife and went to Tulsa where they caught a plane and went to Toledo, Ohio, where he stayed about a week. That he took $5,000 with Mm. Witness testified that be bad seen the defendant driving the Cadillac since about the 9th of December, 1946, and prior thereto he had seen him driving an old 1936 or 1937 Packard. Hilyard further told witness that while in Ohio he wired one Earl Castor, his brother-in-law, $3,000 by Western Union to purchase the Huber Coffee Shop, and he loaned his brother at Bethany $1,000; that he had $500 on his person when, arrested. Defendant told witness he had picked up a fellow in Muskogee, took him to Tulsa, but got drunk on the way over and he woke up in a man’s drive-way, less $400. Witness testified from notes which he swore he made when questioning defendant.

R. H. Wesson, manager of the Western Union Telegraph office in Muskogee, testified that his records showed that Dewey Hilyard, on November 26,1946, wired from the State of Ohio the sum of $3,000 to Earl Castor, at Muskogee.

Walter R. Pearson, assistant cashier of the Commercial National Bank, Muskogee, testified that Dewey Hilyard had business transactions with his bank. He borrowed $40 on August 30, 1945, $58 September 11, and $100 November 3; $32 February 26, 1946, $42 May 21, $50 July 30, and $100 September 23. That Beatrice Hilyard, wife of the defendant, opened a savings account on November 9, 1946, depositing $100, and on December 4, 1946, deposited $800, on December 7, deposited $100; and that she withdrew this money December 18, 1946. That she had a checking account at the bank which wasi closed March 26, 1946, prior to opening the savings account. On cross-examination he testified that Beatrice Hilyard borrowed a total of $1,660 from the bank during the period from 1943 to 1946, in amounts from $32 to the highest of $416; $100 being borrowed July 12, 1946, and repaid on November 8, 1946.

Elbert P. Ferguson testified that be purchased a “beer joint” on North Main street from the defendant in June, 1945, payng $2,200.

F. G. Harmon, business manager of the Commercial Credit Corporation, testified that the defendant Hilyard and wife had borrowed several times from his company; that defendant paid his indebtedness to them in cash December 4, 1946, prepaying a monthly installment loan that had eight months yet to go; that the loan was made August 8, 1946, for $480, and defendant and wife mortgaged their household goods.

William Jones Cook, public accountant, testified that he had lived in Muskogee 44 years and had been preparing tax returns for J. H. Beasley for a number of years from information furnished by Beasley, and that for a period of three years Beasley paid a total of $10,462 income taxes; that Beasley was claiming a loss on account of the alleged theft.

Mrs. Gladys Shackelford testified that she loaned Mrs. Beatrice Hilyard $200 the early part of 1946 so that she could purchase a cafe, and that Mrs. Hilyard repaid the loan in 15 days, although it was made for 30.

The defendant did not testify, and neither did his wife. He used two witnesses, J. Lacy DeGraffenried, county assessor of Muskogee county, and Earl Castor, his brother-in-law.

DeGraffenried testified that J. H. Beasley in his tax assessment list for 1945 swore that he had on hand “money on deposit, including certificates of deposit and postal savings, $300.” And money on hand, “none”, and made the same report for 1946 and 1947. He farther testified that the defendant Hilyard made no assessment for 1945, 1946 and 1947.

Earl Castor testified that the defendant’s wife was his sister; that he had been a fireman with the Muskogee Fire Department for nearly six years, worked around 10 hours a day; that he had been more or less handling the accounts of Mr. and Mrs. Hilyard over a period of years; that he sold a beer tavern for them on North Main for $2,200, and one on South Main for $1,500; that he sold the Arcade Bar for them for $1,800 in August, 1945, and sold a cream station for them for $600; that he got $6 per day for his services while working for them but did not get anything for his trades; that the money would be paid to his sister by the purchasers, and she w'ould give it to him to keep for her and the defendant; that this commenced in 1944. He admitted that he did not keep a bank account for his sister and the defendant, but kept the cash in his “'tomato-can bank” at his¡ home. He did not remember the different dates the properties sold. That through him they loaned his brother in Oklahoma City $3,000 for an operation, but he could not remember the month or the year. The county attorney understood the answer to be $2,000, according to the record, and this was never cleared up. The money was paid in cash. Castor testified that he had on hand $8,000 in cash belonging to his sister and defendant at the time they were going to Ohio, and gave it all to them. He testified that he kept the money in cash in three tin fruit jars and sat them in his kitchen cabinet, but later stated that he kept the money under the floor in the basement of his home. He testified that his home belonged to his sister and the defendant. He further stated that he mortgaged his home for $1,000 to help purchase the north Main street bar for $1,500, which he thereafter sold for $2,200; purchased the Arcade bar for $700 and sold it for $1,800; purchased the South Main street bar for $400 and sold it for $1,-500; the cream station for $50 and sold it for $600. He stated that he mortgaged the home to make his sister and her husband save and not waste their money, by keeping up the payments. That he had $2,000 of their money when he did this. He could not remember for sure whether his brother-in-law owned more than one of the beer bars at any one time or not, but thought that he did. He stated that the defendant was in the whisky business in 1945 and 1946. Witness did not know how much money he, personally, received for his services, as he did not keep a record. He stated that his wife was the head of his family and took care of his business, but she was then deceased. The county attorney asked:

“Q. What changed your mind at the time you turned over $8,000 to them when they went to Ohio? A. I will tell you. They came down to the house one day, came down there drunk and I had them throwed in jail and they came back again and my wife had them throwed in, and they came down there, and he wanted to go back on a vacation, he hadn’t seen his folks for so long and I got it and let him have it, and they came down sober and I let them have it, and we had them picked up twice in one day, they came down there drunk. Q. The reason you gave it to him was because it was his money and you wasn’t afraid he would get drunk and throw it away? A. I let him have it. It wasn’t anything to me.”

For reversal of this case defendant sets out some 16 specifications of error in petition in error, arguing the same under 17 propositions in his brief.

The defendant argues that the evidence adduced by the state was not sufficient to support the verdict of the jury, on the ground that the proof failed to establish the corpus delicti.

This court has held that the “corpus delicti” means, where applied to any particular offense, the actual commission by some one of the particular offense charged; that the corpus delicti may be established by circumstantial evidence, and may be established without showing that the offense charged was committed by the accused. Gorum v. State, 60 Okla. Cr. 248, 63 P. 2d 765; Dowell v. State, 74 Okla. Cr. 6, 122 P. 2d 406.

Here the complaining witness, J. H. Beasley, testified that he placed the sum of $19,170 in a gas pipe and placed the same in his attic; Beasley, according to the evidence, was in the steel erection and construction business. William Jones Cook, a public accountant, testified that he had been making out Beasley’s income tax reports for some time, and that during “the last three years” his client had paid $10,426 income taxes, so that it was established that Beasley had earned enough money to have had the sum stated. Under the facts it was within the province of the jury to determine if they believed from the evidence pointed out, and which was not contradicted, that: First, the crime charged had been committed; and, second, to determine whether or not the defendant committed the crime.

This court held in the case of Brown v. State, 13 Okla. Cr. 111, 162 P. 449:

“In a prosecution for larceny of a domestic animal, circumstantial evidence may be resorted to for the purpose of proving the corpus delicti, in the same way and to the same extent that it may be for the purpose of connecting the accused with the commission of the offense.”

Was there sufficient evidence in the record to support the verdict of the jury in finding the defendant guilty? This court has repeatedly held that where the state relies on circumstantial evidence, circumstances must be such as to preclude every reasonable hypothesis other than defendant’s guilt.

The evidence shows that the plumbing company, on November 6, 1946, sent the defendant to J. H. Beasley’s residence in Muskogee to install a heater that requii*ed the plumber to enter the attic. The defendant’s employer testified to that. Mrs. Beasley testified that the defendant did enter the attic; that he came to her home on November 7, 1946, in the middle of the afternoon; that he returned the next morning and that she left him there about 11 a. m., and that he was gone when she returned, and had closed the back door, which automatically locked. She further testified since her residence in the home no one had ever entered the attic except her husband and the defendant. On discovery of his loss, December 14, 1946, Mr. Beasley promptly reported the loss.

The evidence showed that defendant and wife, prior to November 6, 1946, had for a period of years borrowed small sums of money regularly from various lending agencies ; that they drove a ten-year old Packard car. On November 8, 1946, they prepaid a loan that had eight months to go, and that they paid off other debts, loaned various large sums of money, purchased a Cadillac car for $3,250, and took a trip by plane to Ohio, etc.

The defendant and his wife did not testify, but at-temped to show that they had $8,000 in cash in trust with the witness Earl Castor, who was the brother-in-law of the defendant. Castor testified that he kept the money in tin cans, under his basement floor. He did not use a bank and write checks. And whereas, from the evidence, the complaining witness possibly paid his income tax on the money that he lost, he certainly did not pay his intangible tax to the county treasurer of Muskogee county based on the sum claimed to have been stolen. His action in keeping large sums of money hidden in his attic, and not even within the knowledge of his wife, when he had two lock boxes in local banks, is most mystifying and unusual. The money was subject to the hazard of fire, Beasely’s death without any of his heirs ever discovering the funds, and, of course, subject to theft. But, too, the evidence shows that the defendant did not even list his personal property or intangible property for taxes with Muskogee county, and his agent Earl Castor, though by his own testimony an efficient property seller for defendant, and personal tin-can banker, knew nothing of the income tax angle, and did not even know about his own reports.

So far as the evidence is concerned, we conclude from a consideration of all the evidence, that it was sufficient to support the verdict of guilty found by the jury. This is a close case, however, and such fact will have a bearing on a subsequent proposition that we will hereinafter consider.

The defendant contends that the state failed to prove the ownership of the money alleged to have been stolen and that it was taken without the owner’s consent. The Attorney General calls attention to the fact that in Fuller v. State, 70 Okla. Cr. 408, 106 P. 2d 832, this court held that the lack of consent may be proven by circumstantial evidence, and that in Butler v. State, 60 Okla. Cr. 188, 62 P. 2d 662, it was held that the status of property is of no concern to the thief. But the defendant contends that because the state might have proven by the complaining witness by direct testimony whether or not the money was taken with or without his consent, and that the money was his, and did not do so, that the Fuller case is applicable. Not so. It is true that the county attorney failed to ask the complaining witness the direct questions involved in the subject, and that he should have asked, yet ample circumstances have heretofore been recited to show that the money was taken by someone from the residence of Beasley without his knowledge or consent, and a study of the case of Fuller v. State, supra, will show it applicable.

The defendant raises one proposition that while under a different factual situation might not constitute reversible error, yet here where the evidence is entirely circumstantial, presents a serious question. Defendant contends:

“That the court erred in admitting prejudicial, incompetent, and inmaterial statements made by the county attorney in the opening statement to the jury, over the objections and exceptions of the plaintiff in error.”

Of the statements made by the county attorney, we do not find merit in the objections raised by the defendant to such statements, except the following:

“* * * and he [Hilyard, the defendant] came back in his car [the Cadillac] and made various displays of large sums of money * * * and they were down here on Main Street and that was in the Convention Hall where the big boys had parties and he and his wife got in an argument and fight and his wife stated in his presence she was going to tell the officers where he got his money and he gets a pistol and ran around there and they had a big to-do.”

This was a very material matter. Proof that soon after the defendant drove back from Ohio in the Cadillac, that he was showing large sums of money and his wife had made statements threatening to expose defendant and to show where he had gotten so much money, would have certainly strengthened the state’s case, and even though the state had been unable to show that the wife had specifically indicated that defendant had stolen the money of the complaining witness, proof of just the statement would have been valuable. The statement of the county attorney left an inference that the wife by her purported remarks to her husband had been on the verge at least of exposing some kind of wrongdoing of her husband in his acquisition of the large sums of money the county attorney stated he had been displaying.

No evidence was offered to prove that these things happened. Evidence from third parties who could have testified to the matters stated would have been admissible. Steeley v. State, 17 Okla. Cr. 252, 187 P. 821. The county attorney when he made his opening statement well knew that he could not use the wife of the defendant as a witness, but could only cross-examine her should she voluntarily take the stand as a witness for her husband. If he was just repeating statements that she may have made to him, he knew that he could not offer evidence of such statements. Kaul v. State, 43 Okla. Cr. 56, 277 P. 278; Tit. 22 O.S.A. § 702. He also knew whether or not he had any witness not under disability who would testify to the matters suggested in his opening statement. We must conclude that he could make no such poof, or else he would have done so.

It is true that under the holdings of thisi court, in his argument to the jury the county attorney could properly call to the attention of the jury that though the wife was a material witness for her husband an explanation of how and where he obtained the $8,000 taken by them to Ohio, and had been in the courtroom during the trial, that she failed to testify for her husband. See McCurdy v. State, 39 Okla. Cr. 310, 264 P. 925, 926, where it is said:

“Where the wife of an accused in a criminal case might be a material witness in his behalf and she is not placed upon the stand by him, nor her absence accounted for, the failure to produce ber as a witness to testify is a legitimate matter for comment in the argument of the case.”

Yet, the mentioning of such fact by the county attorney in his argument to the jury tended, no doubt, • to emphasize that the wife had vital information not favorable to her husband that she was withholding, and this may have tended to cause the jurors to take for granted as true the matters enumerated by the county attorney in his opening statement above set out, together with the inferences to be drawn therefrom, and to support which he offered no evidence. And by reason of the fact that the evidence relied on for conviction was entirely circumstantial, and though there were sufficient circumstances shown by the evidence to support the verdict of the jury and judgment rendered, nevertheless, the statements heretofore quoted, and made by the county attorney in his opening-statement, were such that he knew he could not prove, and it is our opinion from a study of the entire record that such statements, unsupported by evidence, were, under the facts in this case, clearly prejudicial.

The principle of law involved is set out in Welch v. State, 41 Okla. Cr. 207, 271 P. 172, and being:

“The purpose of an opening statement is to advise the jury concerning the question of fact to be submitted to it,- so as to prepare the minds of the jurors for the evidence to be heard. No facts should be stated which cannot be proved.”

And see Scott v. State, 59 Okla. Cr. 231, 57 P. 2d 639, 640, in which the court said:

“Ordinarily, error cannot be predicated upon the opening statement of a prosecuting attorney to the jury, specifically stating what facts he expects to develop in testimony, where later, for some reason, he fails to introduce evidence to support some of the narrative related in the opening statement, unless such unsupported portions of the opening statement were made in bad faith and were manifestly prejudicial.”

In that case, by reason of the overwhelming evidence of the guilt of the defendant, the remarks of the county attorney in his opening statement and complained of, were not held error. But in the case of Hall v. State, 68 Okla. Cr. 367, 99 P. 2d 163, the failure of the county attorney to offer evidence to prove matters stated in his opening statement, together with questions asked jurors on voir dire and his argument to the jury, taken together, caused the court to modify the judgment.

The witness Castor accounted for $8,000 of the money the defendant had, if the jury had believed him, but his evidence was not strong enough to account for further sums. The jury assessed the maximum punishment for grand larceny, and the unsupported statements of the county attorney may have accounted for this.

Defendant enumerates other alleged errors, as stated, one being that juryman Bobo had a daughter working for and in the office of the complaining witness*, Beasley, and that he should have disclosed that on his voir dire examination. The questions asked on voir dire examination are not disclosed, and on motion for new trial no evidence was offered tending to show the actual disqualification of the juror, and we do not find it necessary to go into this and other propositions raised, because such matters will not be involved in a new trial, which ive deem necessary by reason of our conclusion that the statements made by the county attorney to the jury in his opening statement, and heretofore quoted, and considered in connection with other matters mentioned were in fact prejudicial, and that the record herein justifies the application of the rule of law hereinbefore set out.

For the reasons stated, the judgment appealed from is reversed, and the cause remanded for further proceedings in accordance with the views we have expressed.

JONES, P. J., and BRETT, J., concur.


text:
    WALKER v. STATE.
    No. A-11103.
    Feb. 15, 1950.
    (214 P. 2d 961.)

      S. S. Lawrence and Amos T. Hall, both, of' Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.
   BRETT, J.

The plaintiff in error, Billy W. M. Walker, defendant below, was charged by information, tried by a jury and convicted of the crime of the murder of Dan Mingo. It was alleged in the information the defendant shot Dan Mingo three times inflicting such bodily wounds on him from which the said Dan Mingo died shortly thereafter. The information alleged the crime was committed in the city of Tulsa, Tulsa county, Okla., near midnight on November 24, 1947. The jury found the defendant guilty, and fixed his punishment at life imprisonment in the penitentiary.

The defendant makes nine assignments of error but makes only two contentions in his brief. First, he contends under the evidence the defendant, if guilty, is only guilty of manslaughter in the first degree. In this connection, we have made a careful review of the testimony. We find it discloses there is a conflict in the evidence, offered by the state and the defendant. Only two persons know what took place in the room where the killing occurred. Ruby Mingo, the wife of the deceased at the time, who was 32 years of age, testified that she and Dan Mingo, the decedent, were husband and wife, but had been separated (not divorced) for about three months. During that period of time Dan Mingo had been gone, returning three days before the killing on Monday night. Two months prior to the killing herein involved, Ruby Mingo met the defendant, Billy W. M. Walker, age 21, and had been intimate with him to the point .of as many as three acts of sexual intercourse per week. After Dan’s return, he had been back to the home at 524 East King street in Tulsa, and had spent three nights there, in bed with Euby. The last of these occasions was on Friday, November 21, 1947, before the killing on November 24. It clearly appears from the record that Dan Mingo did not know the defendant. The defendant admits he did not know Dan Mingo. On the day and night in. question, about 8 or 9 o’clock a. m., Billy Walker had breakfast with Euby, her brother, sister and nephew. Billy left and went to a tavern, the Dew Drop Inn, which was operated by Euby’s sister-in-law, Maisie Camp. Euby later followed him, and together they went to town and bought some things. After some two- hours, on the way home they again stopped for 30 minutes at the tavern where they drank some beer. Then Euby went to her home, where she prepared dinner. About 8 p. m., Billy called her from the tavern and she picked him up in her car and they went back to her house. About 8:30 p. m., Dan Mingo appeared, knocked on the door and was let in at the front door. He came into the kitchen where Euby, her sister Mary, and her nephew, and Billy Walker were present. Dan said “looks like you all are doing all right”. Dan left, and did not return until 11:30 p. m. When he came back, Euby let him in at the front door. She and Billy Walker were in the living room. She testified Billy Walker was then armed with a .38 caliber pistol in his right hip pocket. She said Dan came in and said “If one of you mother etc., (too vile to print) move, I will blow your heart strings out”. She testified she said “Oh, Dan, don’t do that. There isn’t any need for this, what is the matter with you”. She said Dan had his hand in his bosom. She could not see anything in his hand, however. She then said his hand was down in his pants. Billy Walker, she said, was trying to get his hand on the gun in his hip pocket. Suddenly, she said, Dan came at her real fast and kicked her. She went through the door to the bedroom and closed the door. As she retreated, she said Billy Walker was back of Dan Mingo, and on his feet and coming towards Mingo. Then, she said, she heard three or four shots fired. She further testified she retreated to the bathroom and stayed there until her sister came in. That neither Mingo nor Billy Walker was in the house when she came out of the bathroom. That she next saw Walker when Officer Williams brought him back.

Mason Hickman, a state’s witness, testified he lived at 610 East King street, about a block from Ruby Min-go’s place. He said he and his wife were awakened about 11:30 by a man calling for help. She said this man said that a man was trying to kill him about his wife. He rushed to the front door and saw a man running and another man behind him about 15 yards who was armed with a pistol. One shot, he said, was fired as they passed his house the first time. He lost sight of them until they returned running in the opposite direction, in front of his house. When they got in front of his house, he said Mingo tripped and fell over a wire that was run to the next door to protect some flowers he had. The defendant, Walker, he testified, said to Mingo “Get up, you son of a bitch”, and shot him while he was on the ground. These facts show the killing was premeditated and bring the defendant within the definition of section 701, subsection 1, Title 21 O. S. A. 1941, defining murder as a premediated design to effect the death of the person killed. . The killing in this case might have been one based upon the belief of self-defense at the house, but when the defendant pursued the deceased and killed him as the record shows he did, it ceased tó be within the realm of self-defense and clearly fell into the classification of premeditated murder. Under the provisions of section 703, Title 21 O. S. A. 1941, “a design to effect death sufficient to commit murder may be formed instantly before committing the act by which it is carried into execution.” Construing this section this court said, in Basham v. State, 47 Okla. Cr. 204, 287 P, 761, 762:

“A premeditated design to effect death * * * is no more nor less than a mental purpose to take human life, which may be formed instantly preceding the act by which it is carried into execution.” Easley v. State, 78 Okla. Cr. 1, 143 P. 2d 166.

We are of the opinion that when Walker chased and shot Mingo when he was down on the ground, it was his mental purpose to take Mingo’s life; and constituted premeditated murder.

Counsel for the defendant contends that Hickman’s story is improbable, and unworthy of belief. We have carefully examined the same, and find no motive for it save and except to serve the ends of justice. It does not appear to us to be improbable. No doubt, defense counsel’s belief as to the improbability of Hickman’s story is predicated upon the proposition that they ran in one direction in front of Hickman’s house and then returned again running in the opposite direction. That fact alone does not make it improbable. Counsel for the defendant does not go into detail as to why it is improbable. We can only, therefore, surmise it was because of Hickman’s testimony to the effect that decedent reversed his field of flight and returned again in front of Hickman’s house. There is nothing improbable in that fact. Men, when being chased, often reverse their field and suddenly go in the opposite direction obviously to throw their adversary off balance and take advantage of his surprise. It is done every season in football. This maneuver was not improbable but more than probable. Hickman did not know either of the parties, and was without motive so far as this record reveals, except his interest in truth and justice. The record discloses that Mingo laid there on Hickman’s yard until removed to the hospital.

Immediately after the shooting, officers, who were on their way home and in the immediate vicinity, appeared at the point where the decedent lay. They were about 25 feet from Mingo when Walker came over to their car and told them that he had just shot this man. They said that Mingo told them while he was lying on the front yard, “this man is killing me about my own wife”. They searched Mingo and found him to be unarmed, not even with a pocketknife. Further proof offered by the state showed Mingo was shot in the right hand, losing parts of three fingers, shot in the front of the body which went clear through, and once in the back, which bullet was deflected and lodged in the body without entirely passing through the body. Shooting one in the back likewise strips a case of the appearance of self-defense. The record does not show when the back wound occurred. In any event it was while the deceased was in flight and certainly not while making an attack. Mingo died shortly after being taken to the hospital. In substance, this is the evidence upon which the state relied for conviction.

The defendant’s evidence was that at the time the crime was committed he had never been married, that he served in the United States Army overseas in World War II, receiving a Purple Heart for wounds received in action, a Good Conduct medal, and an Honorable Discharge. He testified he was not acquainted with Dan Mingo during his lifetime. That it was his information that Mingo and his wife, Ruby, were separated and it was not his intention to break up a home. He said Ruby lived across tlie street from him and his invalid father. He identified the gun used in the killing as his father’s pistol. He said he took it over to Ruby’s house to show it to Houston Hopkins who Walker said had' talked to him about buying the pistol (this evidence was positively denied by Hopkins who testified in rebuttal at no time had he ever discussed guns with Walker). Defendant denied, contrary to Ruby’s statement, that he was present when Dan Mingo made his first appearance about 8:30 p. m. Further, he testified that Dan Mingo appeared at Ruby’s about 11:30 p. m. He said that prior to that, Ruby got a call from her sister-in-law at the tavern warning Ruby that Mingo had just left the tavern, that he was drinking heavily, was awful nervous and that she had better be careful because he was going to do something to her. (In this connection, no attempt was made by the defendant to corroborate this evidence by calling Tony Gillespie, who Ruby testified gave her the information. The record shows she was available and could have corroborated this evidence. The record further shows that no one was called from the tavern to establish that Dan Min-go was there and drinking though such evidence was available. ) The defendant’s testimony is substantially the same as that of Ruby Mingo’s as to the entrance of Dan Mingo, and what he said to Ruby and the defendant when he entered the premises. The defendant testified he was afraid of Dan, from the things he had heard he had done to Ruby. He had his hands in his trousers. He said his coat was unbuttoned and open. (It is worthy of note in this connection that the state’s case showed by the location of the bullet holes in the coat, that the deceased’s coat was buttoned.) The defendant further said that Mingo came in and rushed Ruby and kicked her. That he got scared and began to reach for his gun believing Mingo was armed. He said when Ruby ran into Mrs. Kemp’s bedroom, he, the defendant, also followed her intending to escape into the kitchen but Mingo cut him off from Mrs. Kemp’s bedroom. (Herein appears a discrepancy in his testimony and that of Ruby’s. It should be recalled, according to her, that she slammed the door between Mrs. Kemp’s bedroom and the living room, leaving the defendant and Mingo therein. Immediately thereafter she said she heard three or four shots from a gun, therefore, according to her story, the shooting occurred in the living room.) The defendant says he slipped the pistol from his pocket and Mingo grabbed it. The first time he pulled the trigger he says it snapped, the next time it fired he shot Mingo loose from the gun. . Then he says they started grappling over the bedroom and he, the defendant Walker, started firing. The facts show that there was one bullet in the door facing, between the living room and bedroom, which is proof of the fact that part of the shooting did occur in the living room. The defendant’s story as to it having occurred in the bedroom stands unsupported. He says he fired four shots in the house and none other outside the house. Finally, Mingo turned him loose, he said, and ran out of the back door. Shortly thereafter some one ran up on the front porch. The defendant says it scared him, he thought it was Mingo and he said “so I ran out the back door myself”. He positively denied he chased the deceased Mingo down the street and shot him while he was on the ground as testified to by state’s witness Hickman. To the contrary, he said he came back into the house and waited until some one said the officers were on the corner. So he got his hat and went to the corner, and when he got there he surrendered himself and his gun to the officers.

The foregoing contains a substantial statement of the evidence on behalf of both the state and the defendant. The weakness of tbe defense lies in the contradictions between the evidence of Ruby Mingo and the defendant in relation to the killing and the place thereof; and the failure to prove corroboration of either story from persons who could have provided corroboration if the facts had warranted it. The strength of the state’s evidence lies in the fact that Mingo was shot in the back and, according to the evidence of Mason Hickman, the defendant chased and shot Mingo while he was down on the ground. No doubt similar observations in relation to the condition of the evidence occurred to the jury. The conflict in the evidence raised an issue for the determination of the jury.

We have repeatedly held that where the evidence is conflicting, and different inferences may be drawn therefrom, it is the province of the jury to weigh the evidence and determine the facts. Furthermore, the Criminal Court of Appeals will not weigh conflicting and contradictory evidence in a case which has been passed on by the jury and reverse the same for insufficiency. Jackson v. State, 84 Okla. Cr. 138, 179 P. 2d 924; Young v. State, 84 Okla. Cr. 71, 179 P. 2d 173; Boulding v. State, 83 Okla. Cr. 352, 177 P. 2d 152; Brown v. State, 81 Okla. Cr. 314, 164 P. 2d 401. Moreover, we have held that before the Criminal Court of Appeals will interfere with a jury’s verdict on the ground that the evidence was insufficient to sustain the conviction there must be no competent evidence in the record on which the verdict could be based. Ritter v. State, 84 Okla. Cr. 418, 183 P. 2d 257; Lowery v. State, 87 Okla. Cr. 313, 197 P. 2d 637. The contention, therefore, that the evidence is insufficient to support the conviction of murder is without merit.

Finally, the defendant contends that the argument of the county attorney was extremely vicious, inflammatory and prejudicial. Only the argument of the state’s prosecutor is set out in the record. During his argument only twice did counsel .for the defendant object to the argument of the county attorney.' An examination of the record discloses that the first objection was not well taken, and was properly overruled. As to the second objection interposed during the prosecutor’s closing argument, the record discloses that the county attorney’s remarks were in response to what defense counsel had said about him as to another criminal case, as well as in relation to another case subsequently to be tried wherein the defense counsel was to appear as special prosecutor. The trial court sustained the objection of the defendant and admonished the jury not to consider the remarks of the county attorney. This contention falls within the rule announced in Ussaery v. State, 22 Okla. Cr. 397, 212 P. 137, as follows, to wit;

“When the entire argument on both sides is not before the court, and the county attorney contends that his argument is in reply to argument advanced by defendant’s counsel, and the trial judge overrules the objection to such argument, this court will not pass on the alleged error, unless the argument complained of constitutes a violation of some constitutional or statutory right of the defendant. Under such circumstance the presumption will be indulged on appeal that the trial judge ruled that such argument was permissible as reply argument, as the burden is upon the appellant to affirmatively show error in the ruling of the trial court.”

The record does not disclose that the argument complained of constituted a violation of the constitutional or statutory right of the defendant. The foregoing quotation is cited with approval in the recent case of Wilson v. State, 90 Okla. Cr. 180, 212 P. 2d 172. Further, in Chesser v. State, 63 Okla. Cr. 84, 73 P. 2d 191, 192, this court said:

“Ordinarily, error cannot be predicated upon mere unexplained excerpts from the remarks of counsel to tbe jury. Enough must appear of record to advise tbe appellate court of what preceded the alleged objectionable remarks and their meaning to be deduced from the context, and whether or not they were invited or provoked by remarks made by opposing counsel.”

The record supports the conclusion that the objection interposed to the remarks in the closing argument of the prosecutor was apparently provoked by what had been said by counsel for the defendant in relation to the prosecutor’s attitude. The evidence of guilt was so clear and convincing that if no argument had been made on either side the result would have been the same. The most eloquent argument on behalf of the defendant was undoubtedly his fine war record and his youth, and the fact that he had never been arrested or convicted before. We believe that these facts alone, combined with the excellent representation of counsel for the defendant, probably prevented the jury from inflicting the death penalty. The judgment and sentence of the trial court is accordingly affirmed.

JONES, P. J., and POWELL, J., concur.