text:
    G. B. ARRISON v. STATE.
    No. A-863.
    Opinion Filed April 18, 1912.
    (122 Pac. 916.)
    HOMICIDE — Assault with Intent to Kill — Evidence. In a prosecution for assault with intent to kill, evidence held to sustain conviction of assault with intent to do bodily harm.
    (Syllabus by the Court.)

      Appeal from District Court, Comanche County; J. L. Johnston, Judge.

    G. B. Allison was convicted of felonious assault, and appeals.
    Affirmed.

      B. M. Parmenter„ for plaintiff in error.

      Smith C. Matson and E. G. Spihnan, Asst. Attys. Gen., for the State.
   PER CURIAM.

Plaintiff in error, G. B. Allison, was tried in the district court of Comanche county on a charge of assault upon the person of J. H. Stuart, with a deadly and dangerous weapon, with intent to kill, and was convicted of assault with intent to do bodily harm. He was sentenced to serve one year in the county jail.

The prosecuting witness testified as follows:

“I now reside at Newkirk, Okla.; have resided there ever since the 1st of February. Prior to that time, resided in Comanche county, up near Sterling. Am a married man. My occupation in Comanche county was a farmer. I think I resided there a little over three years. Owned my own farm; still own it. Know defendant. My house was a half a mile northeast of Mr. Allison’s house. Rived about four and one-half or fice miles southeast of Sterling. Known Mr. Allison almost four years. Rived up in that neighborhoow until last February. Saw Mr. Allison on November 30th of last year a mile and a half, probably two miles, southeast of Sterling. It was about noon. I was traveling in any open buggy, a road wagon, driving a single horse, going east. Met Mr. Allison there about a mile and a half east of Sterling, and probably a half mile south of the comer of Sterling. He was going west. There was a young man with him. Mr. Allison was in a buggy, a double rig, and had a top on it. The first I knew it was him I was meeting was when he called my name; stopped and called my name, 'Mr. Stuart/ I was rather looking down to avoid getting into a ditch on this side of the road, and when he said, ‘Mr. Stuart,’ I looked up and says, ‘Hello/ He made the remark, T offered to pay you for them hogs’; and I says at that time, I says: ‘Why didn’t you come across and do it? You never even claimed them.’ He said, made the remark, T sent my little boy, Sam,’ and says: T told Sam what I intended ; that I intended to do what I said in the note I sent him.’ And I started to say, ‘It was Sunday,’ and he said: ‘Sunday! You scoundrel! I saw you drive them off of the other man’s land/ I said: ‘You lie. I never done it/ And at that he grabbed the shotgun and jumped out of the buggy, and at that I leaned forward and struck the horse with the lines, and spoke to the horse to get up, and was going up the road in a gallop when I was shot. When I drove off I didn’t look back to see what he done; didn’t look back until after I was shot. He shot with a double-barrel shotgun. When he shot, I dropped in the seat and peeped around the north edge of the seat. I saw Mr. Allison standing at the north side of his buggy. I couldn’t distinguish whether he had anything in his hands while he was standing there. Saw him grab the gun before I whipped the horse with the lines. Did not have a whip in my buggy; I struck with the end of the lines. One shot struck me in the left shoulder blade After I was shot, I drove on to Mr. Stice’s residence; that is on my way home. It would be a little over 80 rods from where I was when the shot struck me. When I got there I hitched my horse and went into the house. I went up to the door and knocked, and Mr. Stice came to the door, and I went in; didn’t look back to see what became of Mr. Allison after I was shot. Only remained at Stice’s a short time. I then proceeded on home. Phoned Dr. Cannon from Mr. Stice’s; he came to our place immediately. When Mr. Allison mentioned that he had offered to pay for the hogs, I asked him why he didn’t do it. I says: ‘You never even came across and claimed them.’ I have reference to a bunch of hogs I had taken up Sunday prior to this on my premises. I turned the hogs out and sent them home after I was shot. The hogs had been depredating on my premises there at the time I shut them up. Didn’t know for certain whose they were; thought they were Allison’s. I wrote a note and told him. I think I described the number of hogs. Told him I had them, and if they were his to come over and pay for the trouble and take them; and if they wasn’t his I would have to proceed to advertise as stray stock, and treat them as stray stock I don’t remember how I said it. In reply to that, I received this note. [Marked ‘Exhibit A.’] Can’t see well without glasses, not so good as the average man. When Mr. Allison first drove up. did not recognize him until he spoke; then I recognized him. His rig was stopped as I looked up; his rig was standing still. Saw the rig approach down the slope. I knew I was meeting the rig, but couldn’t distinguish who it was. That occurred in state of Oklahoma, county of Comanche. I did not drive the hogs on my place. We had not been good neighbors.”

Dr. -Cannon, on behalf of the state, testified:

“I am a physician and reside at Sterling. Am acquainted with J. H. Stuart. Was called to see him on or about the 30th day of November, 1908. Saw him at bis home. It was about noon. Made an examination of his body for wounds; found a shot wound in the left shoulder. The shot was just about where you have a suspender in the back of the shoulder. I extracted the shot; it was imbedded against the bone, the shoulder blade. Know the size of shot used in shotguns. The shot was about No. 6 or 8; have that shot with me.” (Witness produced the shot; offered in evidence.)

J. E. Sims, on behalf of the state, testified:

“I live in Comanche' county, Brown township. Know defendant; know J. H. Stuart. I was constable in Comanche county about the 10th of November, 1908. Lived something like a quarter of a mile from Allison. Lived three-quarters of a mile from Stuart. The time when it is alleged that Allison shot Stuart was about eleven o’clock. I recollect the time. Saw defendant the day before the shooting. Saw him on Sunday; he was at my place. Had a conversation with defendant in regard to Stuart. He came to my house on that Sunday morning. It must have been nine or ten o’clock. He came up and asked if I had a law book, and I told him, ‘No.’ I says, ‘Why?’ He says: ‘Stuart got my shoats again, and I came up to see if you had a book with the law governing stock.’ And I says: ‘No; I haven’t got any on the place.’ He says: ‘He taken them up a while ago, run them in, and sent me a note by the boy- He taken them up a while ago, and sent me a note by his son, and said he had the hogs up, and come down and pay the damage, and he would turn them loose.’ And I believe, I think further, he says: ‘He didn’t bring it himself.’ He says, ‘No.’ He says: ‘God bless you, I will give any man a $10 bill to get him on the corner of my place.’ On Monday after the trial ended, there was some four or five down here and went on the stand and testified against him, and he said they swore a lie and tried to blackmail him; and he said he was going to get even with them. And he said the best citizens of Lawton told him he ought to take his gun and shoot them down wherever he met them; and he kept talking. I couldn’t say what all he said. I remarked to him, I says: ‘You beat the case, and what else do you want?’ I says, T would keep still, if I was you.’ Mr. Stuart was one of those people who testified against him at that trial. Saw Mr. Allison off and on from the time of the trial and the conversation I have related until the time of the shooting. During that time, he went armed generally, with a shotgun, breechloader, No. 12, double barrel. When I heard about the shooting, I went to Allison’s house. He seemed to be somewhat excited. He says, T suppose you heard what I done.’ I says. ‘Yes.’ He says: T will turn myself over to you, and whatever you say,’ he says, T will do.’ I says, T guess the best thing I can do is to go to Lawton.’ And he says, ‘Well, all right,’ and he turned to Emmett and says, ‘Go tell your mother.’ There was a gun in the buggy; it was a double-barrel gun. They taken the gun in the house.”

The accused, in his own behalf, testified:

“I am 53 years old. Lived in Brown township, Comanche county, on November 30, 1908. At this time, am living in Law-ton; have lived here since last Wednesday week. Am the defendant. Acquainted with Mr. Stuart. Saw Mr. Stuart on November 30, 1908. Saw him between my place and Sterling. I was going from my house to Sterling. I lived five miles and a half southeast of Sterling, and my nephew and myself was in the buggy, and we met Mr. Stuart. My nephew’s name is Marvin Allison. Mr. Stuart was coming east in this direction, and, I was going west. He passed me on the right of me, and myself on the right of him, and Mr. Stuart stopped just, not exactly to my left, but a little in front of me like, and his buggy dropped down in that rut, one wheel of it; but I don’t remember whether I spoke to him or him — He says, ‘Hello,’ and I says: ‘Mr. Stuart, 30 minutes after you run my hogs in yesterday, I wrote you a note that I would pay you if they damaged you.’ And when I said that he just raised his hands. Now, I hate to repeat the words, gentlemen; a man that has any respect for womanhood would not use them. He says, ‘You are a God damn lying son of a bitch, and I will kill you,’ and when he said that I jumped out of the buggy. I thought the gun was coming right on me. And when I did — my mules was young, and they jumped — and when my mules jumped, that left me right exactly opposite Stuart, and he had his gun right ready to draw, ready trying to get it on me, and I dodged right behind his buggy; and when I did, my foot slipped into that ditch as I pulled the trigger, and I suppose that’s the reason he only got one shot, gentlemen, in place of the whole load. I was in the buggy when he first made the pass for his hip pocket. The reason I got out of the buggy was because I just thought he was going to kill me. He told me he was going to kill me. He said he would. I supposed from the way he moved his hands he had a gun. He had a gun. My mules jumped and left me opposite Stuart, and I jumped in behind him, and him turning this way. He was going east, just in this direction, and I was right there, and he was turning his gun on me, and I went in behind his buggy back there, and went into that rut. I fired that shot because I thought my life was at stake. Didn’t fire the other shot, because he throwed the gun down and run. The other barrel was loaded with bird shot. No difference in the barrels. The right-hand barrel was one of these plover barrels that scatters, and the left-hand was a choked barrel. I used the right-hand barrel, the one that scatters. Dropped his gun right down in the buggy in front of him; begun to whip with both hands. I seen he had his lines and begun to. Marvin was holding the mules. He did not get out. That is the customary road for me to go from my house to Sterling. Had been in the habit of driving over that road often. The road was dry. For some time prior, the weather had been dry. I know the roads was very dry. Did not fire any shot after he was ten yards from me. Did not fire any when he reached approximately sixty yards from me. After I fired the shot, he grunted. He did not get down in the buggy seat, nor peep around the corner of the buggy seat. The reason I had the gun along was because it was bird time, quail. I shoot quail sometimes. That is why I had the gun along. Had been doing some shooting that day. During the quail season, it is my habit to carry a shotgun with me. The shells were suitable for shooting quails. At the time Stuart called me a God damn son of a bitch, he seemed to be awful angry. It had been some time since he had spoken to me. Grandpa Sims had told me to be careful; he would hurt me. He said he was informed he was prepared for me. Jim Sims also warned me. He told me Stuart was a bad man; if he had an opportunity he. would hurt me. At the time Jim Sims made the statement, Marvin Allison was present. At the time Grandpa Sims was present, Jim Sims said about the same thing. Never told Jim Sims that some of the good people down here at Lawton told me I ought to get my gun and kill all the neighbors around there that testified against me. I said if I done my Christian duty — Stuart and all those trying to connect me with the very privates of my eleven year old girl — I said if I had done my Christian duty, I would have taken the gun and killed these villians; that’s what I said. They tried to connect me, and his honor knows it; and I want you to understand it. I will tell you, John Fain, if they was to do you that way, you would take a gun to them, and any other sensible man; and if these jurors wouldn’t do it they are not fit to be jurors. No; I will tell you they wouldn’t be fit to be jurors if they didn’t do it. None of them would be men, when they tried to connect me with the private parts of my eleven year old girl, if they wouldn’t take a gun to such men. You swore right there you was going to prove things by me, and you didn’t prove it; you prejured yourself, and that girl perjured herself, and you yourself perjured yourself; and you impeached yourself as an officer by not doing it, and you are an impeached officer and a perjurer. From that time I have spoken to Mr. Stuart; but he has not spoken to me.”

J. A. Sims, on behalf of the accused, testified:

“I live five miles southeast of Sterling. Lived there five years, about three-quarters of a mile, or hardly that far, from Mr. Allison’s residence; a little over three-quarters from Stuart’s place. Besides farming, ,1 have been working for a purchase house in Chicago four years. In October or November of last year, I was engaged in canvassing for my books; had been over the different roads. It is my impression the roads were dry in November, 1908. I told Mr. Allison, I said: T want to put you on your guard, and you be particular.’ He says, ‘Why so ?’ I says: ‘Just as sure as you go to tackling three different men, giving their names, that when you do, they will be ready for you.’ That was before the shooting. Mr. Stuart was one of the men I had reference to. Mr. Seymour and Bob Williams were the others.”'

John Hickey, on behalf of the accused, testified:

“I live up close to Sterling, six miles between Marlow and Sterling, six and one-half from Sterling southeast. Acquainted with Mr. Allison. • About November 30, 1908, I was hauling hay and corn from above where Mr. Allison lived up by Mr. Zackery’s up about eight miles out to where I live. Went over the roads east of Sterling. Seems to me like the road was dry. I don’t remember of any water, or anything of the kind. And probably some hazy weather, something like this, when I was hauling. I don’t remember having to drive across any mud and water.”

J. P. Ratliff, on behalf of the accused, testified:

“I live two miles from Sterling. Rive on the farm and keep post office at Sterling. Rived there eight years. Was in and around that vicinity of Sterling on or about November 30, 1908. 1 came from Elgin on the 3,0th. The roads wasn’t muddy between there and Elgin. Everybody was gathering corn. The roads was good.”

Emmett Allison, for the accused, testified:

“I put the gun in the buggy. My father did not direct me to. G. B. Allison is my father. Did it on my own motion.”

Marvin Allison, for the accused, testified:

“I am nineteen years of age. Rive in Covington, Ga. Been here since Thursday a week ago. Acquainted with Mr. Allison; he is my Uncle. Was out here the 28th of last March a year ago. Was farming after I came with Mr. Allison. Came out here for my health more for that than anything else. Rived with my uncle out near Sterling. Know J. H. Stuart. Saw J. H. Stuart on or about November 30, 1908, about two miles southeast of Sterling; also saw my uncle there. Went over there in a buggy, driving two mules. Mr. Stuart was going east. I ivas going west towards Sterling. Met him in the road. My uncle said: ‘Mr. Stuart, in thirty minutes after you drove my hogs in, I sent a note by my little boy, and offered to pay you for it.’ And when he said that Mr. Stuart said: ‘You God damn lying son of a bitch, I will kill you.’ He moved his arm that way. Seemed as he was going for his hind pocket. At the time he said that, my uncle jumped out of the side of the buggy. I held the mules. The mules jumped as he jumped out of the buggy. I had been driving. As he jumped out, he took a shotgun. Pie shot at Mr. Stuart; did not see him when he shot. I looked back as quick as I could stop the mules. The-mules were young, and they were afraid when the. gun fired. I looked as'quick as I could. They hadn’t gone very •far when I stopped them, about ten feet, I reckon, When I looked -back, my uncle was behind my buggy. Stuart’s buggy was going up the road at that time. Couldn’t say how far it had gone, about 30 or 40 feet, 50 -feet, something like that. Plis horse was loping. After my uncle fired I heard Stuart- groaning as if a man was hurt. Did not hear him say anything. Stuart was sitting up in his buggy. Did not see him at any time in any other attitude after he started down the road, except a sitting posture. Did not see him behind the seat, out of sight. After my uncle got out of the buggy, he shot almost immediately — just as quick as he could step behind the buggy, step across. Heard Mr. Sims tell my uncle he better watch Mr. Stuart; that was prior to the time of the shooting. Had been living there with my uncle six or or seven months. It had been my custom to go up to Sterling pretty often; the road was dry.”

Cross-examination:

“Had been over to Mr. Stuart’s house that morning before I started to Sterling. Emmett and I had been over there an hour or so before we started, I suppose. I know Mr. Stuart had gone to Sterling; think I did. Came and reported that fact to my uncle. Then he and I got in the buggy and started to town. I had gone over to Mr. Stuart’s that morning in the buggy. I took the gun over to Mr. Stuart’s. We had it laying under the seat of the buggy; been hunting birds that morning. Mr. Allison went to town after the mail. I did the driving. He carried the gun on to Sterling.”

J. H. Stuart, in rebuttal for the state, testified:

“On November 30th of last year, when the assault was made upon me, I did not have a pistol on that occasion. Did not have a pistol that day. Did not have a pistol or gun of any kind about my person or- buggy that day. Did not own a pistol; had not borrowed a pistol. Did not draw, or attempt to draw, a pistol at any time. Did not throw my hand to my hip pocket before Mr. Allison jumped out of the buggy, nor at any time. Did not throw my hand to the back part of my body at any time after I met Mr. Allison in the road. I had hold of the lines. Did not raise my hand and shake it in Mr. Allison’s face and say to him: 'You are a God damn son'of a bitch, I will kill you.’ I use no profane language. Did not call him any name or language, except that of a liar. When I called him a liar, I did not throw my hand to my hip pocket, or any place about my person. As soon as I seen the gun coming up, I started the horse up and drove off; drove to Mr. Stice’s house. Mr. and Mrs. Stice, Wilson Brooks, and a young man they called Tom Key were there. Did not attempt to move the horse until I started to drive off. Did not attempt' to move the horse until I struck him with the lines. Never owned a pistol in my life. Never lived in the mountains, the Rocky Mountains or the Wichita Mountains. Came from Iowa to Kay county, and from Kay county here. Never, at any time prior to this time, made any threats of violence against Mr. Allison.”

A. G. Lovett, in rebuttal for the state, testified:

“Know defendant; know Stuart. Live in the same neighborhood. Was one of the neighbors who testified against Mr. Allison in the case tried last March in the district court. Think Allison made a statement, or something like this, to me that he had no neighbors; but they were all damnable sons of bitches. Do not remember since that trial that defendant made any threat as to what he would do to the men that testified against him at that time. To the.best of my knowledge, he said that he calculated to go onto all of us.”

I. K. Bailey, in rebuttal for the state, testified:

“Am acquainted with G. B. Allison and Stuart. Live about a quarter of a mile, or a little over, from Mr. Stuart, about a half a mile from Mr. Allison. Know about the time when Mr. Stuart was shot. Went over to Stuart’s on Sunday morning before the difficulty between him and Allison after a hog. Drove a hog home from Stuart’s that morning; drove it right west of him across over the pasture. Was in my pasture driving the hog that morning. From where I was driving the hog in my pasture, could have been seen by persons sitting on Mr. Allison’s gallery. I think so; I know I can see the house from about the place where I was. It was somewhat early; I should judge about 8 or 9 o’clock. After the shooting, I had a conversation with defendant about it. I was up on the south part of the place at work doing something, and got to talking about it. He told me that he got out of the buggy and shot at him, and talked like he shot to hurt him. He spoke about getting out of the buggy, and something about he stepped in a ditch or something, and his foot slipped and made the remark if his foot hadn’t slipped he would have got him.”

William Stice, for the state, testified:

“Know defendant and know Stuart. Live at Fletcher, Okla. Know the time of the difficulty between defendant and Mr. Stuart. I was living then out near Sterling, southeast, about a.mile and a-half across the fields, but the way they got to go around the roads, probably two miles and a half. The road from Mr. Stuart’s to Sterling passed my house. I know the day of the shooting. About 12 o’clock that day, I was at home. Saw Mr. Stuart that day. He reached my house about 12 o’clock. When I first seen Mr, Stuart, he was on my east porch, going to the door, and knocked. . A young man by the name of Tom Key was working for me, and Wilson Brooks was there. That was just a very few minutes after the trouble, from what-I know and learned. I helped Mr. Stuart. I taken off Mr. Stuart’s coat. He had tw'o coats on; he had one of those heavy duck coats on, and an outside black dress coat. He had that duck coat over the blac)< dress coat; and he had the black dress coat buttoned with one button, and the duck coat he had it buttoned with one button. I made an examination of Mr. Stuart that day. First I helped him take his coats off. I felt through his pockets. I didn’t put mjy hands into his pockets, but I pulled — I helped him get his coats back this way, and pulled off his coats off back; and as I pulled them back and.laid them down I felt the objects in his coat, and went through his pockets and felt the weight of them, and he didn’t have any gun about his coats. I afterwards examined his buggy. It was a one-horse buggy with a tolerable bed to it and no top on it. The back part of the buggy was tolerable high, high back. I examined the buggy to see if there was any weapons in it. Never found no pistol. He left the horse and buggy hitched to the post by the side of the front gate.”

John Donald, for the state, testified:

“Live in Lawton. Work in a bank. Have had experience in shooting shotguns. Have had experience in shooting at game and at targets. Have had experience in the use of shotguns for the last seventeen or eighteen year; hunt a great deal. From my experience with a shotgun, would say a shotgun fired in the hands of one sitting, say, where I am now sitting, at a buggy, and the man sitting where this man is sitting on the jury, with a blue shirt, I believe all the shot would hit him For a person to be shot with only one shot, they would have to be scattered. So that only one shot would hit on his shoulder blade, he would have to be about eighty yards.”

Mrs. J. H. Stuart, for the state, testified:

“My name is Mandy Stuart. I am the wife of J. H. Stuart. Was living in this county on the 30th day of November last year. Remember the occasion of Mr. Stuart being shot on that day. Mr. Stuart never owned a'pistol at that time; never did. Have not seen a pistol around my house and premises since I have been married to Mr. Stuart. To my knowledge, he- did not have a pistol on November 30th. AVhen he left there on.the morning of November 3t0h, he had no gun whatever of any kind. Did not have any pistol when he came home on that occasion. On the morning of the shooting, Emmett Allison and Marvin AIJison came over to my house. I told them where Mr. Stuart had gone. I told them he had gone to Sterling; told them what business he had gone on. After that they went back home, direct home to Mr. 'Allison’s home. That was between 10 and 11 o’clock. It was near onto 11, if I remember right. That is the only time they were there that day. Afterwards I seen a buggy leave with two men in it, going towards Sterling.”

We have carefully gone over the assignments of error; and, while the instructions of the court are subject to some criticism, we find no error sufficiently prejudicial to the substantial rights of the plaintiff in error to justify a reversal of this cause.

The judgment of the trial court-is therefore affirmed.


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    J. T. RITCHIE v. STATE.
    No. A-795.
    Opinion Filed April 18, 1912.
    (122 Pac. 944.)
    APPEAL — Conflicting Evidence — Conclusiveness of Verdict. Under our system of jurisprudence, it is tie exclusive province of tlie jury to determine whether the evidence tending to prove the guilt of the defendant is so lacking in convincing- force as to leave an intelligent and discriminating mind to doubt as to the truth of the charge; and in reviewing questions of fact upon appeal, if there is a fair conflict in the evidence, or it is such that different inferences can be properly drawn from it, the determination of the jury will not be interfered with, unless it is clearly against the weight of evidence, or appears to have been influenced by passion or prejudice.
    (Syllabus by the Court.)

      Appeal from District Court, •Wagoner County; John H. King, Judge.

    J. T. Ritchie was convicted of stealing cattle, and appeals.
    Affirmed.

      Chas. G. Watts and Bailey & Wyand, for plaintiff in error.

      Chas. West, Atty. Gen., and Smith C, Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

The charging part of the information reads:

“That the said J. T. Ritchie and Bill Brown, in the county and state aforesaid, on the day, month, and year aforesaid, did feloniously steal, take, and carry away two red steers, two years old, one roan steer, two years old, one red heifer, two years old, ánd one red cow, six years old, all of the value of one hundred and twenty-five dollars, the property of one Frank Jones, with the felonious intent to deprive the owner, the said Frank Jones, thereof, and to appropriate the same to their, said J. T. Ritchie’s and said Bill Brown’s, own use, contrary to,” etc.

Upon the trial, the jury returned a verdict finding the defendant J. T. Ritchie guilty. February 10, 1910. the defendant was sentenced to imprisonment in the state penitentiary for five years. From the judgment, the defendant appealed by filing in this court, on June 9, 1910, a petition in error with case-made.

The assignments of error predicated on the action of the court in overruling a motion to set aside and quash the information as not properly verified, and in overruling a demurrer to the information, present no question that has not heretofore been decided adversely to the defendant’s contentions by this court.

It is next contended that “the court erred in overruling the motion of the defendant to dismiss the case for want of sufficient evidence.” Upon a careful reading of the evidence in this case, there can be no doubt but that the verdict of the jury is amply supported, if the jurors believed the evidence given on the part of the prosecution. Under our system of jurisprudence, it is the exclusive province of the jury to determine whether the evidence tending to prove the guilt of the defendant is so lacking in convincing force as to leave an intelligent and discriminating mind to doubt as to the truth of the charge; and, in reviewing questions of fact upon appeal, if there is a fair conflict in the evidence, or it is such that different inferences can be properly drawn from it, the determination of the jury will not be interfered with, unless it is clearly against the weight of evidence, or appears to have been influenced by passion or prejudice. Both of the defendants testified, and from their testimony alone the guilt of the defendant J. T. Ritchie is sufficiently shown.

The instructions of the court fully and fairly state the law of the case, and no good purpose would be served by reviewing the objections to them, further than to say that we find no.error in any of the matters complained of in the assignments pertaining to them.

From our examination of the record in this case, we are of opinion that the defendant had a fair and impartial trial, and the verdict and judgment rendered has our approval.

The judgment of the district court of Wagoner county is therefore affirmed.

FURMAN, P. J., and ARMSTRONG, J., concur.


text:
    O. O. GOBEN v. STATE.
    No. A-821.
    Opinion Filed April 18, 1912.
    EVIDENCE — Attacking Prosecutor — Evidence in Rebuttal. Where the defendant, testifying on his own behalf, voluntarily makes a statement irrelevant to the issue, obviously intended to east reflection upon the prosecuting officials, evidence is admissible to impeach and refute such statement by cross-examination of the defendant, and by direct evidence to the contrary.
    (Syllabus by the Court.)

      Appeal from Comanche County Court; James PI. Wolverton, Judge.

    O. O. Goben was convicted of a violation of the prohibition law, and' appeals.
    Affirmed.

      Al Jennings and Stevens & Myers, for plaintiff in error.

      Smith C. Matson, Asst. Atty. Gen., and J. A. Pain, Co. Atty., for the State.
   DOYLE, J.

Plaintiff in error was tried and convicted on an information charging him with an unlawful sale of whisky, on the 21st day of January, 1910. The testimony is conclusive as to the guilt of the defendant.

The defendant testified on. his own behalf, and in his testimony admitted that he was engaged in the unlawful sale of intoxicating liquors as a business in Comanche county prior to January 1, 1910. And that he had a privilege to sell it from the sheriff with the county attorney’s consent, for services rendered by him in getting a man by the name of Hammer out of the country, who was going to sue the sheriff and county attorney.

The defendant complains that incompetent, irrelevant and immaterial testimony was admitted over his objection as a part of his cross-examination.

We think that this testimony was properly admitted. The defendant voluntarily made this issue and the county attorney accepted it. To have refused the county attorney the privilege of disproving it by further cross-examination of the defendant would have been rank injustice. The testimony complained of bears directly upon this statement. The defendant testified that at the time this “privilege” was given he was engaged in business on the north side of “C street,” next to Cotney’s drug store. He offered in evidence a check for $25 dated and paid June 17th, 1909, which he stated was given Hammer in furtherance of his alleged agreement with the sheriff and county attorney to get him out of the country, and that Hammer immediately left. The evidence of the defendant on further cross-examination shows that at the time of this alleged agreement he was not on C street, but was still engaged in business in the Budweiser pool hall on D street, with his brother C. L. Goben and J. B. Sims, during the months of June, July, and a part of August, 1909, and that during this time numerous prosecutions had been filed against him, C. L. Goben and J. B. Sims for selling whisky in the Budweiser pool hall, upstairs and downstairs, and that the building was closed by injunction brought by Mr. Fain, the county attorney. The testimony complained of relates directly to these facts to disprove the defendant’s voluntary statement that he had the privilege of selling whisky.

The testimony complained of is in part as follows:

“Q. Your brothér C. L. Goben has been found guilty by a jury? A. Yes, sir. Q. Your brother-in-law, J. B. Sims, has been convicted, has he not, in this court?. A. Yes, sir. Q. He had been convicted prior to that time, hadn’ he, Doctor? A. Yes, sir. Q. Your brother, C. L. Goben, had been convicted prior to that time, hadn’t he? /V. Yes, sir. Q. You were a witness for him on that occasion, was you not? A. Yes, sir. I think so. Q. Now, you were doing business upstairs there, and I closed the place of business, didn’t I?' No answer. Q. You had full protection from the county attorney ? How many prosecutions have been filed against you? A. I don’t remember.”

This testimony followed the further voluntary statement of the defendant that he had the “privilege” to sell whisky, to wit:

“Q. And since you have stopped selling over there you say you haven’t sold any whisky to anybody? A. Well, yes, I have sold some. Mr. DeFors said I was the only man who could get in with the fellows in the east end of'town, and he said for me to go down in the east end of town and go in partnership with Simpson, and I said, ‘You see Fain,’ and he said he went to see Fain and Mr. Fain said, ‘You go ahead,’ and I went in partners with Charlie Simpson and we sold whisky.”

This statement of the defendant relating to his “privilege” was voluntary. The state had the right to challenge these voluntary statements on cross-examination. The testimony was competent, relevant and material on this issue raised by the defendant.

The obvious and evident purpose of the defendant was to besmirch the character of the county officials responsible for his prosecution.

It is immaterial to the questions presented, and it would be profitless to review the glaring contradictions and inconsistencies in the testimony of the witnesses for. the defense upon this issue. One or two are admittedly ex-convicts. Their perjured statements need no contradiction from witnesses for the state. Suffice it to say that Sheriff LeFors testified that he had no such conversation with the defendant, or with the county attorney, Mr. Fain; that neither he nor the county attorney had ever authorized the defendant to sell whisky, but on the contrary, the county attorney had been prosecuting the defendant Goben, and had been diligently trying to convict him, and that he had instructed the sheriff to catch the defendant whenever he could.

With reference to the alleged agreement wherein the defendant stated that he was privileged to sell whisky if he would get Hammer out of the country, the defendant testified that this agreement and conversation took place in the county attorney’s office, in the Keegan building, at a meeting with him there one night, by appointment, the latter part of July.

Mr. Fain, county attorney, testified that the defendant did request a meeting with him by calling him up over the phone one evening after he had gone home; that he had repeatedly declined theretofore to talk with the defendant unless some reputable citizen was present; that on this occasion he consented and immediately called up Under Sheriff Sam Elrod over the phone and requested him to meet him down town. Accordingly they met, and the county attorney requested Elrod to secrete himself against the door to the room where he would place Goben so that he could hear all that was said. Accordingly at the appointed time Elrod was concealed when the defendant came into the room and heard the entire conversation. Both Elrod and the county attorney testified that no such conversation or agreement was had. That Hammer’s name-was not mentioned; that they had never heard of Hammer making any complaint against the sheriff or threatening him with suit, but that the real and only subject of conversation was that Goben wanted the privilege of selling “Amber Mead” at the approaching county fair, and that the county attorney positively refused to allow him to do so, and that there was no “Amber Mead” sold and positively no privilege given him to sell any kind of liquor. This conversation was more than a month after the check was given to Flammer. That this man Hammer had pleaded guilty to impersonating an officer in representing himself to be a deputy sheriff of Caddo county, and thereby induced the sheriff, LeFors, to turn over to him a horse thief apprehended in Comanche county on a telegram from the sheriff of Caddo county, and it developed that Hammer was not a deputy sheriff, but was a partner of the horse thief and released him as soon as he got out of town. He served his sentence and never claimed any cause of action against the sheriff.

Further review or comment on the testimony would be profitless. .Suffice it to say that the members of this court know Mr. Fain, county attorney of Comanche county, and know him to be a gentleman of unquestionable integrity and ability of the highest order, and his arduous devotion to duty and unparalleled success in the prosecution of criminals commands for him the respect and confidence of the people and of the courts.

The judgment of the county court of Comanche county will be affirmed. Mandate to issue forthwith.

FURMAN, P. J., and ARMSTRONG, J., concur.


text:
    ABE GREEN v. STATE.
    No. A-948.
    Opinion. Filed April 19, 1912.
    (122 Pac. 1108.)
    1. INDICTMENT AND INFORMATION — Matters to be Proved— Corpus Delicti — Guilt of Accused. In every criminal prosecution it devolves upon the state to prove, first; the corpus delicti; second, that the crime charged was committed by the accused.
    2. WORDS AND PHRASES — “Corpus Delicti.’’ The “corpus delicti’’ means, when applied to any particular offense, the actual commission by some one of the particular- offense charged.
    3. APPEAL — Sufficiency of Evidence. Where the evidence only raises a mere suspicion of the guilt of the accused, it is insufficient to warrant a conviction; and where it clearly appears that the findings of fact and the decision of the trial court have no substantial support, or are clearly without support in the evidence, the judgment will be reversed.
    (Syllabus by the Court.)

      Appeal from Superior Court, Custer County; J. IV. Lawier, Judge.

    Abe Green was convicted of violating the prohibitory law, and appeals:
    Reversed and remanded.

      LeRoy Jones, for plaintiff in error.

      Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error, Abe Green, was charged, by informatioii filed in the superior court of Custer county, with, on July 15, 1910, unlawfully selling to one Warren Lucas a bottle of beer for 50 cents. On the same day, another information was filed, identical, except it alleged the sale to one W. M. Heiligman.

At the September term of said superior court, the first case came on for trial, and, inasmuch as both cases involved the same transaction, place, circumstances, and witnesses, it was agreed by the state and the defendant that the two cases be tried together, and, a jury being waived, the cases thus consolidated were tried before the court. The state introduced its evidence and rested, and the defendant interposed a demurrer thereto, for the reason it wholly fails to sustain the allegations in the information. The demurrer was by the court overruled and exception allowed. The defendant then took the stand and testified on his own behalf.

The finding of the trial judge upon the facts proven was that the defendant was guilty in each case. The defendant filed a motion for a new trial, on the ground that there was no evidence showing the commission of the offenses charged, which was overruled by the court. September 30th judgment and sentence was entered that the defendant serve a term of 30 days in the county 'jail and pay a fine of $50 in each case. The defendant appealed.

The petition alleges that the court erred in overruling the demurrer to the evidence; that the evidence is insufficient to sustain the finding and decision of the court; that the court erred in overruling the motion for a new trial. The assignments of error all go to the sufficiency of the evidence.

Before reviewing the evidence, it is proper that we should briefly notice the established rules to be observed in considering this question.

In every criminal prosecution, it devolves upon the state to prove, first, the corpus delicti (that is, the fact that the crime charged has been actually perpetrated); second, that it was committed by the accused. This court will not ordinarily disturb the decision of a trial judge in overruling a demurrer to the evidence, or in denying a motion for a new trial, based upon the insufficiency of the evidence to support the finding of the trial court, where a jury has been waived; and it will not do so where the record discloses evidence showing the commission of the offense charged, and from which guilt of the defendant can be fairly inferred ; but it will interfere where it clearly appears that the findings of fact and the' decision of the trial court have no substantial support, or are clearly without support in the evidence.

There is no conflict in the testimony as to any material fact. The facts as they appear from the record are as follows:

C. B. Wood, first witness, testified that he had a search warrant, and with J. T. Malone went to the defendant’s dugout, and there found about a dozen bottles of beer; that Lucas and Heiligman were in the dugout, but did not see them have any beer in their possession.

J. T. Malone, the next witness, testified substantially the same as Mr. Wood.

The next witness for the state was Wm. Heiligman, to whom, it is alleged in the one information, the defendant sold the beer. He testified, in substance, that on the day in question he saw-the defendant somewhat intoxicated on the street in Clinton, and heard him szy that he had just had a cold bottle; that he had some cool ones; that he and a Mr. Bulow concluded that they would go down to the defendant’s house and see if they could find any beer, and if they could they would drink a bottle and say nothing to the defendant about it; that they went to the defendant’s place and went into his dugout, and there they found Warren Lucas; that there was some beer in a tub; that they were about to drink some of it when the officers and the defendant came down upon them; that the defendant did not know that they were there, and he was not with them at the dugout until he came with the officers; that witness did not pay for the beer, had no agreement to pay for it, and did not intend to pay for it, and that the defendant could not have expected him to pay for it; that he never bought any intoxicating liquor of the defendant; that witness simply stole a bottle of beer.

Warren Lucas, to whom, it was alleged in the other information, the defendant sold beer, was the next witness for the state, and testified substantially the same as the preceding witnesses; that he went to the defendant’s dugout, without the' defendant’s knowledge, and took a bottle of beer, without any intention of buying or paying for the same, and did not pay for the same, or agree to do so; that he never bought any beer at any time from the defendant.

This was all the proof on the paid of the prosecution. By a demurrer to the evidence, all just inferences which can be drawn therefrom are admitted. Is this evidence sufficient to establish the corpus delicti, sufficient to warrant the court in finding that the offense charged had been committed? We think not. The evidence, at best, only raises a mere suspicion of the guilt of the defendant, and the demurrer thereto should have been sustained.

The defendant on his own behalf testified that he had been up town and returning to his home found Mr. Wood at his dugout with a search warrant; that he did not know that Lucas and Heiligman were in his dugout; that he had about a dozen bottles there for his own use; that he had never offered to sell, and did not sell either Lucas or Heiligman or any person any beer.

This was all the testimony in the case.

Being clearly of opinion that the finding of the court and judgment of conviction is without support in the evidence, such judgment will be reversed. The judgment of the superior court of Custer county is therefore reversed, and the cause remanded thereto.

FURMAN, P. J., and ARMSTRONG, J., concur.


author: ARMSTRONG, J.

text:
    ALBERT MOTLEY v. STATE.
    No. A-953.
    Opinion Filed April 20, 1912.
    (122 Pac. 1110.)
    APPEAL — Review. When a disputed issue of fact is properly submitted' to the jury, the finding of the jury on such issue will not be disturbed by this court on appeal, when there are no prejudicial errors of law disclosed by the record.
    (Syllabus by the Court.)

      Appeal from District Court, Pittsburg County; Preslie B. Cote, Judge.

    Albert Motley was convicted of larceny, and appeals.
    Affirmed.

      Crump & Bailey and Rogers & Harris, for plaintiff in error.

      Smith C. Matson and B. G. Spilman, Asst. Att}?s. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error was convicted at the June, 1910, term of the district court of Pittsburg county on a charge of larceny of domestic animals, and on the 14th day of said month sentenced by the court to one year' in the state reformatory at Granite. •

The information in this case charges Cleve Akins and Albert Motley with the theft of a steer, the property of George P. Brown.

Prosecuting witness Brown testified that the steer in question was his; that he did not sell it to either of the parties charged with its theft; that it was not branded, but was marked with a crop off each ear; that he missed the steer from its range in Pounds Valley, Pittsburg county, and after several days’ search found it six or seven miles south of Kiowa, in the possession of a Mr. Land.

State’s witness Neal testified that he knew plaintiff in error and Cleve Akins, knew the steer in question, and that it belonged to Brown; that Akins and Motley took the steer away; that he saw them about a mile from his place in a large pasture; that the steer was tied to Motley’s horse, and Akins was riding the horse ; that they had a yearling tied to the Akins horse, and Motley was riding this horse; that Akins’ wife was with them; that a man named Fender was with witness; that when witness came upon the plaintiff in error and Mrs. Akins they turned the yearling loose and ran away; that the witness was about 100 yards away, and saw them for a mile or more; that witness waited some time, but they did not come back; that the steer in question was freshly marked; that his ears were still bleeding; that Akins was about 50 yards from the road; that plaintiff in error was some 150; that the parties were going in the direction of Akins’ house; that witness afterwards, in company with the owner, Brown, and two ■other persons, saw the steer in Joe Land’s pasture; that plaintiff in error and Akins left the country a short time thereafter.

State’s witness Pat Fender 'corroborated the witness Neal, and in addition testified that he saw plaintiff in error and Akins together looking for the same cattle.

Witness Joe Land testified that he bought the steer in question from the accused, and afterwards repurchased him from the ■owner, Brown.

The plaintiff in error testified in his own behalf that he bought the steer in question from Cleve Akins, also a red yearling bull, and paid $35 for the two; that Akins owed him that sum, ■and the cattle were taken in payment of the debt; that he had no idea the steer in' question had been stolen.

Jim Motley, brother of the accused, testified that he knew the accused had loaned Cleve Akins $35; that he was present when the accused got the cattle from Akins in payment of the debt.

In addition, the proof clearly shows that the plaintiff in error knew Akins’ brand, and knew that there was no brand on the steer in question.

On this state of facts, the jury found the defendant guilty, and the trial court permitted the verdict to stand.

This court has so often held that the verdict of a jury will not be disturbed on appeal, when disputed questions of fact are the only issue, that we hardly feel called upon to reiterate the doctrine. It was entirely within the province of the jury to say whether or not the accused was guilty; and their judgment in-this case is conclusive upon this court.

Counsel for the accused contend that the following instruction of the court is sufficiently prejudicial to justify reversal of the-judgment:

“You are further instructed that, if you believe from the evidence in this case, beyond a reasonable doubt, that said property was in fact stolen, as charged, from one George F. Brown, and if you further believe that one Cleve Akins stole or drove said steer from the range and sold or traded it to the defendant, Albert Motley, and that the defendant gave assistance and aided in the taking and driving of said property in good faith, and believing at the time that it was the property of Akins, and not knowing that it was stolen, and without willfully and ’feloniously participating in such theft, then- you will find the defendant not guilty; and if you have a reasonable doubt as to the willful and felonious intent on the part of the defendant in the taking and' driving and sale of said steer you should acquit the defendant.”'

We see nothing prejudicial in the instruction, when considered together with the remainder of the court’s charge. We have scrutinized the record carefully, and find no errors of law prejudicial to the substantial rights of the plaintiff in error.

The judgment of the trial court is affirmed.

FURMAN, P. J., and DOYLE, J., concur.


text:
    J. T. RUPARD v. STATE.
    No. A-988.
    Opinion Filed April 20, 1912.
    (122 Pac. 1108.)
    1. INTOXICATING LIQUORS — Illegal Conveyance — Evidence. In prosecutions for unlawfully conveying intoxicating liquor from one place in this state to another place therein, the state is only required to establish by the proof, beyond a reasonable doubt, that the liquor charged to have been conveyed, or some portion of it, was conveyed as alleged in the information.
    2. SAME. As a matter of defense, a person charged in the courts of this state with conveying intoxicating liquor may prove that the liquor so conveyed was a lawful purchase, intended for a lawful purpose; and when this is done, to the extent of raising a reasonable doubt in the minds of the jury, he is entitled to an acquittal.
    3. APPEAL — Affirmance. When a person is on trial, charged with unlawfully conveying intoxicating liquor from one place to another in this state, and the proof establishes the conveyance as al leged, and no proof is introduced by the accused, a judgment of conviction is proper, and will be affirmed on appeal.
    (Syllabus by the Court.)

      Appeal from Washita County Courty L. R. Shean, Judge.

    L. T. Rupard was convicted of unlawfully transporting intoxicating liquor, and appeals.
    Affirmed.

      Massingale & Duff, for plaintiff in error.

      Smith C. Matson and B. G. Spihnan, Asst. Attys. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error was tried and convicted at the October, 1910, term of the count}'- court of Washita county on a charge of unlawfully conveying intoxicating liquor from one place in the city of Eoss to another place in said city.

The proof on behalf of the state shows that the plaintiff in ■error was suspected of selling intoxicating liquor, and was being watched by the city marshal; that the plaintiff in error went into a booth in the rear of a pool hall with another person, and was followed by the officer, who began to search the other party, whereupon the accused ran out and 'started away. The officer pursued him a short distance, and saw him throw a bottle of whisky to dne side in the snow. The arrest and prosecution followed. Accused introduced no testimony whatever in his own-behalf.

In the case of Clarence Maynes v. State, 6 Okla. Cr. 487, 119 Pac. 644, this court held:

“In prosecutions for conveying intoxicating liquor, the state is only required to establish by the evidence, beyond a reasonable doubt, that the intoxicating liquor charged to have been conveyed, or some portion of it, was conveyed as alleged in the information.”

In the same case we further held that a lawful purchase of whisky, intended for a lawful purpose, could be conveyed from one place to another. Under this doctrine, the state’s case is complete when the proof establishes, beyond a reasonable doubt, that'the intoxicating liquor was conveyed as charged.

It is a matter of defense for the accused to establish his innocence to the extent of raising a reasonable doubt in the minds of the jury as to the lawfulness of his possession of the intoxicating liquor and the conveyance thereof.

No evidence having been introduced teliding to establish such a defense, the state’s case was established, and the judgment of the trial court was proper and right. The record discloses no error prejudicial to the rights of the accused.

The judgment of the trial court is therefore affirmed.

FURMAN, P. J„ and DOYLE, J., concur.


author:
PER CURIAM.
      FURMAN, P. J.

text:
      CHARLEY OVERTON v. STATE.
    No. A-307.
    Opinion Filed April 18, 1911.
    (114 Pac. 1132.)
    Rehearing Opinion April 20, 1912.
    (123 Pac. 175.)

      Appeal from Tulsa County Court; N. J. Gubser, Judge.

    Charley Overton was convicted of violating the prohibitory law, and appeals.
    Affirmed, and cause remanded.

      Biddison, Campbell & Bagleton, for appellant.

      Fred S. Caldwell, for the State.

      Appealed to XJ. S. Supreme Court.

   PER CURIAM.

Appellant was convicted in the county court of Tulsa county for violating the prohibitory liquor law, and his punishment was assessed at a fine of $100 and 60 days’ imprisonment in the county jail. We have carefully considered the brief of counsel for appellant, and have read over the entire transcript of the record and case-made. We find that a demurrer was not filed to the information, and that nq exceptions were reserved to the instruction of the court. All of the questions presented in the brief have heretofore been decided by this court adversely to the contentions of counsel for appellant. -In view of the immense amount of work we have upon our hands, it would be a useless consumption of time and space to rediscuss .these questions. We think the evidence in the case amply supports the verdict: The judgment of the trial court is therefore affirmed, and the cause is remanded to the county court of Tulsa county, with ■directions that it proceed* with the execution of its judgment.

OPINION on Rehearing.

1. COMMERCE — Intoxicating Liquors — Conveyance within State. The conveying clause of section 4180, Comp. Laws 1909, is not in conflict with the interstate commerce clause of the Constitution of the United States, and is not a burden on interstate commerce in intoxicating liquors.

2. STATUTES — Construction. The statutes of the state of Oklahoma are to be construed in connection with and in subordination to the Constitution of the United States and the acts of Congress adopted in pursuance thereof.

3. INTOXICATING- LIQUORS — Illegal Conveyance — Evidence. For evidence sustaining a conviction for unlawfully conveying intoxicating liquors from one place in the state to another place therein, see facts stated in the opinion.

4. APPEAL — Sufficiency of Evidence. The jury are the exclusive judges of the weight of the evidence and the credibility of the witnesses; and, where there is any evidence in the record from which the jury could reasonably conclude that the defendant is guilty, this court will not disturb their verdict, upon the ground that it is contrary to the evidence, unless it affirmatively appears from the record that the jury were influenced by improper motives in arriving at the verdict.

5. TRIAL — Misconduct of Jury — Impeachment of Verdict. Misconduct occurring in the jury room while the jury was considering its verdict cannot be shown by the affidavit or testimony of a juror.

6. CONTEMPT — Impeachment of jury is sworn in each case to render a true verdict according to the law and the evidence. Where a juror files an affidavit or testifies that he was influenced by anything, in arriving at the verdict, except the law and testimony, he swears to his own dishonor, and stultifies and impeaches himself, and informs the court, under oath, that he has been guilty of the grossest contempt in ignoring and disregarding the instructions of the court. He should therefore be punished for contempt of court.

7. APPEAL — Duty of Court. Laws are enacted and courts are established to punish and suppress crime. If this court were to undertake to hunt for excuses to turn guilty men loose, it would be a gross perversion of its duty and an outrage upon the rights of the law-abiding people of the state. It is our duty to so construe the law as will protect society, and not be a source of en-. eouragement and protection to crime and criminals.

S. Lawyers clients’ interest alone. But this court-is charged with the double duty of seeing that no defendant shall be punished unjustly, and also with seeing that the rights of society are respected and protected. We must therefore look at both sides of each record presented to us.

(Syllabus by the Court.)

FURMAN, P. J.

When this cause was first submitted we considered every proposition presented in the brief of counsel for appellant, but did not deem it necessary to discuss these propositions in detail, as we had already passed upon every one of them. On account of the zeal and ability with which counsel for appellant support their motion for a rehearing, we will, however, now discuss each proposition presented.

The first proposition is as follows:

• “(1) Conveying Clause Unconstitutional. The conveying clause of section 4180, Comp. Raws 1909, is unconstitutional, because it discriminates against liquors purchased through an inter- . state shipment. It is in conflict with the interstate commerce clause of the Constitution of the United States, and is a burden of interstate commerce in intoxicating liquors.”

We cannot agree with this contention. The statutes of Oklahoma are construed in connection with and in subordination to the Constitution of the United States and the acts of Congress passed in pursuance thereof.

In the case of Maynes v. State, 6 Okla. Cr. 487, 119 Pac. 644, this court expressly held that an interstate shipment of whisky constituted a lawful purchase, as contemplated by our statute.

In the case of Titsworth v. State, 2 Okla. Cr. 268, 101 Pac. 288, this court said:

“The Constitution of the United States declares that Congress shall have power ‘to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.’ To ‘regulate’ means to control. So it is seen that the power of regulating or controlling commerce between the states is vested exclusively in Congress, and that no state has the power to pass any law upon this subject, or which would in any manner interfere with or abridge the right of one of its citizens to purchase in another state any article of commerce which could be lawfully sold in the state where the purchase is made, and bring it to his home in his own state for his personal use. This has been decided so often that no person who is well informed upon this subject will question the rule above stated. This matter has been passed upon by the Supreme Court of Oklahoma in Schwedes v. State, 1 Okla. Cr. 245, 99 Pac. 804, and by the Criminal Court of Appeals in the cases of Huston Hudson v. State, 2 Okla. Cr. 176, 101 Pac. 275; Webb High v. State, 2 Okla. Cr. 161, 101 Pac. 115, [28 L. R. A. (N. S.) 162], and Josh McCord v. State, 2 Okla. Cr. 214, 101 Pac. 280. The cases above referred to contain such a thorough discussion of this matter, and quote from such an overwhelming weight of authorities, that it is not necessary to repeat what will be found in them. If we are in error touching this matter, it will be an easy thing-for the enforcement officer of this state to make a test case in a civil proceeding, and carry it to the Supreme Court of the United States for final determination. If that tribunal sees fit to reverse its former decisions, we will be bound by such action, and cheerfully follow it. But, until this is done, we feel constrained to adhere to the decisions as they stand now.

“If the decisions of the Supreme Court of the United States * are wrong, application should, and can, be made to that court for a reversal .of these decisions. It is a waste of time, money, and labor to appeal to this court to set anything aside which that court has decided. The Supreme Court of the United States, of necessity, must be the final judge of the construction of the United States Constitution. Otherwise we would have a hydra-headed judicial system, in which 47 independent appellate courts could construe this instrument as they pleased, which would result, not only in confusion, but in civil war. Each tribunal would be supported by the military forces of the government which it represented. This would result in death and destruction to our form of government. Certainly no reasonable person desires this court to adopt a policy which would bring about such serious consequences as this. It would be treason itself. One thing can be depended upon, and that is that this court will not make any such insane attempt. Under the Constitution of the United States and the decisions of the Supreme Court of the United States, it is clear that any resident of Oklahoma can purchase intoxicating liquors in another state, and ship them into this state, and to points of destination, for his own personal use, and that such shipments constitute interstate commerce, and that any state law; to the contrary is void. But these shipments lose their character as interstate commerce as soon as they reach the point of their destination, and any further shipment of such liquors is subject to state control. The exact language of the Supreme Court of the United States is as follows: ‘Equally established is the proposition that the right to send liquors from one state into another state, and the act of sending the same, is interstate commerce, the regulation whereof has been committed by the Constitution of the United States to Congress; and hence that a* state law which denies such a right, or substantially interferes or hampers the same, is in conflict with the Constitution of the United States. * * * But the right of persons in one state to ship liquor into another state to his residence, for his own use, is derived from the Constitution of the United States, and does not rest on the state law. Either the conditions attached by the state law unlawfully restrain the right, or they do not. If they do, then they are void..5

right of every citizen of a state to purchase and have shipped to him liquors for his own use, says: ‘But the right arises from the Constitution of the United States; it exists wholly independent of the will of either the lawmaking or executive power of the state; it takes its origin out of the state of South Carolina, and finds its support in the Constitution of the United States. Whether of not it can be exercised depends solely upon the will of the person making the shipment, and cannot be, in advance, controlled or limited by the action of the state in any department of its government.’ Vance v. Vandercook, 170 U. S. 439, 18 Sup. Ct. 674, 42 L- Ed. 1100.

ing liquors in another state, and ship tk.n to his place of business or home, for his own use, upon what ground can the claim be made that he cannot keep such liquors at his home of place of business, provided that he does so exclusively for his own use? Is it not true that the grant of power to do a certain thing includes and carries with it the right to do all things which are necessary to the full exercise and enjoyment of the power expressly granted? There can be but one -logical answer to this question.' If a person can lawfully bring intoxicating liquors to his home or place of business, so long as he does not attempt or intend to use such liquors, except for his own use, he has the right to keep them there. There is no logical escape from the conclusion that, if a resident of this sta’te has the constitutional right to ship into the state intoxicating liquors for his own use, he has the same right to receive, keep, and use such liquors for the purpose for which they were shipped.”

attempts to interfere with the right of any person in Oklahoma to purchase intoxicating liquors and ship them into the state as interstate commerce, and carry them as such to his home or place of business for his own use, and this right has been repeatedly recognized by the decisions of this court. As we understand the decisions of the Supreme Court of the United States, this fully recognizes every right guaranteed by the commerce clause of the Constitution of the United States. We are still of the opinion that this question has been decided adversely to appellant by this court in our former opinions. If we are wrong in the conclusion at which we have arrived, as this presents a fedei'al question, an appeal will lie from our decision to the Supreme Court of the United States, and, as we know that counsel for appellant are both earnest and able, we suggest that they carx-y this question to the Supreme Court of the United States for final determination.

The second proposition of counsel for appellant is that the verdict axid judgment are contrary to the law and evidence, the contention of counsel being that the liquor in question was an interstate shipment which appellant was conveying from the depot to his home; and counsel assert that the evidence on this question is conclusive and undisputed. An examination will show that this contention is not supported by the recoi'd. This shows, how easy it is for lawyers who look at but one side of a case to be honestly mistaken as to the effect of the testimony against their clients. But it is the duty of this court-to look at both sides of a case, and to consider the entire record for the double pux'pose of seeing that a defendant has xiot been illegally convicted, and is not unjustly punished, and also to see that the rights of society at lax-ge are respected and protected.

The appellant testified in his own behalf that the liquor in question was an interstate shipment over the Missouri, Kansas & Texas Railway Company from Kansas City, Mo., and that when arrested he was conveying it from the depot in Tulsa to his home. He testified it was shipped in two boxes or cases; that when it reached Tulsa the tops and bottoms of the boxes were torn off, and he placed the whisky in a sack; that when he went to the depot and obtained the whisky it was 1 or 2 o’clock at night; that he obtained it from the freight house foreman, one Frank Carter; that appellant went to Carter’s house and pulled him out of bed; that he went at 2 o’clock at night to get this whisky. On cross-examination, he was asked what he was going to do with 10 cases of whisky the officers caught him with on the 10th day of June preceding, which question, upon the advice of counsel, he declined to answer, upon the ground that such answer would incriminate him.

Appellant was arrested on the night of July 1st. He testified, that an expense bill which he offered in evidence, marked “Exhibit B,” shows that the whisky was received at Tulsa on the 27th day of June prior to the time when appellant was arrested with it, but that he never went for the whisky until between 1 and 2 o’clock at night on July 1st.

Frank Carter, who was warehouse foreman of the Missouri, Kansas & Texas Railway Company at Tulsa, testified that on the night of June 30th, between 2 and 3 o’clock, appellant presented to him an expense bill on two cases of whisky, and requested him to deliver said whisky to appellant; that the whisky had been in the depot of the railroad company at Tulsa since the 27th day of June; that appellant came to the room of witness and woke him up, and had him get out of bed for the purpose of delivering the whisky; that he did not keep the warehouse open at night; that the regular hours for delivering goods at the depot were from 6:45 in the morning until 10 o’clock at night. This witness did not say anything about the boxes or cases in which the whisky was shipped being broken open, and that appellant had been forced to take the whisky away in a sack. His testimony establishes the fact that at the transaction to which he testifies he delivered to appellant two cases of whisky. This was all of the evidence introduced by appellant.

J. J. Morgan testified for the state that he was sheriff of Tulsa county, Okla. That about 2 o’clock on the morning of July 1, 1909, witness saw a cab at Elgin street, in the city of Tulsa, where it crosses the Frisco right of way, and that said cab was driving from the north; that witness ordered the hack to stop; that the driver did not do so until the witness drew his gun; that the driver saw the gun and stopped his hack, and appellant said, “You are not going to shoot, are you?” Witness rer plied, “No,” and witness then got into the hack and found a sack; that he asked what it contained, but does not remember what answer, if any, appellant made. The witness then seized the sack and found it contained 94 one-half pint bottles of whisky and two broken bottles.

Sam Walker testified that he was a policeman in the city of Tulsa; tliat he was present and acting with the sheriff when the arrest in this case was made. His testimony corroborated that of the sheriff in all respects. This was all of the evidence offered in behalf of the state.

Upon the trial of the case, the court, at the request of appellant, instructed the jury upon this issue as follows:

“The court further instructs the jury that if they find from the evidence that the defendants did carry intoxicating liquors from one place within the state of Oklahoma to another place within the state, but find that said intoxicating liquors had been shipped from a point within the state of Missouri, consigned to-the defendants, or either of them, at the city of Tulsa, Tulsa county, Okla., and that the defendant consignee was carrying said intoxicating liquors from where he had received them from the common carrier which had brought them into the- state of Oklahoma to his home, then you shall find the defendants not guilty.”

It is seen by this that the court recognized the right of appellant to convey an interstate shipment of whisky from the depot to his home, and so instructed the jury.

In the case of Maynes v. State, 6 Okla. Cr. 487, 119 Pac. 644, this court expressly decided that intoxicating liquors received as interstate shipments constitute a lawful purchase of such intoxicating liquors, but that the burden is upon the appellant to prove this fact. The testimony of the state’s witness made out a prima facie case against appellant. It is true that appellant testified that the whisky in question was an interstate shipment, and that he was conveying it to his own home; but the entire circumstances of the case throw suspicion upon his evidence, and we think warranted the jury in rejecting it. If the state was bound by the testimony of the defense, it would be impossible to obtain a conviction in any case. Even the most positive and direct evidence sworn to by a large number of witnesses may be entirely destroyed by its inherent weakness. For instance, we are informed in the Bible that the Roman soldiers swore that while they were asleep the disciples stole the body of Christ. This sworn statement has always been rejected by intelligent people, for the obvious reason, if no other, that if the soldiers were asleep they could not tell what became of the body of Christ during that, time. Appellant’s testimony in this case could scarcely be more incredible. It was proven that it was not the custom of the railroad company to deliver shipments at night; yet we are asked to believe that appellant, between 1 and 3 o’clock at night, awoke the warehouse master and obtained this whisky which had been there for three days; that the two cases in which the whisky was shipped were broken and could not be carried, and appellant there-, fore placed the whisky in a sack, although the defendant’s witness, Carter, did not testify to anything of the kind. If it was true that the whisky constituted a legal purchase which appellant had a right to carry to his home, why the necessity of this secret manner of carrying it home? We have the answer in Sacred Writ: “They love darkness rather than light, because their deeds are evil.” If appellant was using whisky for a lawful purpose, why did he claim immunity from answering the question which was asked him by the county attorney as to the ten cases of whisky previously found in his possession? If appellant and the cab driver were conveying the whisky for a lawful purpose, why was it that the sheriff had to pull his pistol before he could stop the cab and get the whisky? All of these circumstances fully warranted the jury in regarding the testimony offered by appellant as a fabrication, pure and'simple. The jury saw these witnesses and heard them testify, and were in a much better position to judge'of the truthfulness of their statements than are the members of this court. ■ The credibility of the witnesses and the weight of their testimony is always a question exclusively for the jury, and this court will not disturb a verdict, where there is any evidence in the record from which the jury could legitimately reach the conclusion that the defendant was guilty. This question has been decided so often that it is not necessary to cite authority in support of it. We are therefore still of the opinion that this court has repeatedly heretofore decided the issue presented contrary to the contention of counsel for appellant.

The third and last proposition submitted in the motion for a rehearing is that misconduct occurring in the jury room while the jury was considering its verdict can be shown by the affidavits or testimony of the jurors. This is not the law in Oklahoma. See Colcord v. Conger, 10 Okla. 460, 62 Pac. 276; Petitti v. State, 2 Okla. Cr. 131, 100 Pac. 1122; Spencer v. State, 5 Okla. Cr. 11, 113 Pac. 224; Vanderburg v. State, 6 Okla. Cr. 486, 120 Pac. 301; Keith v. State, ante, 123 Pac. 172. Every jury is sworn in each case submitted to it to render a true verdict according to the law and the evidence. After a verdict has been rendered, and a juror files an affidavit or testifies' that he was influenced by anything in arriving at the verdict except the law and testimony, he swears to his own dishonor, and stultifies and impeaches himself, and he informs the court, under oath, that he has been guilty of the grossest contempt in ignoring and disregarding the instritctions of the court. Instead of being encouraged to file such affidavits, or to give such testimony, when any such attempt is made, the juror should be severely punished for contempt of court. It matters not how any other court in any other state may have decided this question, we are not willing to place the administration of justice in Oklahoma at the mercy of such men. While we dislike to render a judgment which will result in punishment to any human being, yet we cannot avoid the duty imposed upon us to so construe the law as to protect the honest, hard-working and law-abiding people of the state. Raws are enacted and courts are established to punish and thereby suppress crime. It is no part of our duty to hunt for excuses to turn guilty men loose. We must seek to protect society, and not criminals.

In conclusion, we desire to say that we are always ready and willing and anxious to give respectful attention and careful consideration to all questions submitted to us for determination, either on the original submission, or on a motion for a rehearing; but we also desire to say that this court is flooded with briefs, alleged arguments, and motions for rehearings, filled with wildest and most unwarranted statements as to the law and the evidence which are positively and vehemently asserted and plausibly maintained. We cannot decide cases upon these assertions; for,, if we did, the rights, property, and lives of the people of Oklahoma would be completely at the mercy of the criminal classes^ We are therefore compelled to look beneath the surface and carefully examine the records and consider the law and see what foundation, if any, there may be for the propositions submitted. We think that the facts and law in this case are against appellant, and that in his conviction justice simply claimed and marked its own.

The motion for a rehearing is therefore denied, with directions to the clerk of this court to issue the mandate without further delay.

ARMSTRONG and DOYLE, JJ., concur.