text:
    BILL KLUGAS v. STATE.
    No. A-8188.
    Nov. 14, 1931.
    Rehearing Denied April 9, 1932.
    (9 Pac. [2d] 962.)
    Grim & Grim, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Cleveland county of having possession of a still, and was sentenced to pay a fine of $250 and to serve 90 days in the county jail.

The record discloses that, at the time charged, certain officers with a search warrant went to the farm of defendant some 9 miles east of Norman, and near the boundary some 300 yards from Ms residence found a large still with burners and connections for a complete distillery, 12 empty mash barrels, some fresh run whisky, and about 100 empty sugar sacks. The still had been recently in operation. The place where it was found was inaccessible except a way passing in view of his residence. Defendant denied ownership or any knowledge of the still.

It is argued that the evidence is not sufficient to sustain the judgment. Without reciting or discussing the circumstances further, we are of the opinion the evidence is sufficient. Complaint is made that the court erred in overruling defendant’s motion for a new trial on the ground he did not have an impartial jury. The case was tried October 17; prior thereto, on September 21, defendant had been tried on a similar charge and one of the jurors who sat in this case was on the jury in the former case. The voir dire examination is not in the record. Counsel for defendant states the usual perfunctory questions were asked the juror, but he Avas not asked about his having been a juror in any other case. He answered he knew no reason why he could not act fairly and impartially. Apparently neither counsel nor defendant recognized the juror as having served in any former ease. Defendant is entitled to a fair jury, but it is incumbent upon Mm to use diligence in examination as a basis for the intelligent exercise of his challenges for cause and his peremptory challenges. This court has followed a liberal rule in allowing examination on voir dire and in the right of a defendant to have jurors who are not impartial excluded. Where it appears that the fairness and impartiality of a.juror is called in question, the trial court must be clearly satisfied that the juror is fair and impartial, and any doubt upon that point should be resolved in favor of the accused. Temple v. State, 15 Okla. Cr. 176, 175 Pac. 733; Schrimpsher v. State, 32 Okla. Cr. 371, 241 Pac. 201; Popp v. State, 44 Okla. Cr. 220, 280 Pac. 478; Weber v. State, 44 Okla. Cr. 450, 281 Pac. 987; Moffit v. State, 45 Okla. Cr. 440, 283 Pac. 1027. The fact that the juror sat in the trial of a similar case does not disqualify. 35 C. J. 325, § 343F, and authorities cited. It does not appear the juror concealed or failed to answer fully and truthfully any question propounded him on voir dire. The court did not err in overruling the motion for a new triaL

The case is affirmed.

DAVENPORT, P. J., and CHAPPELL, J., concur.


source: Caselaw Access Project

author: EDWARDS, J.

license: Public Domain

text:
    OBIE ROBERTSON v. STATE.
    No. A-8125.
    Jan. 9, 1932.
    Rehearing Denied April 9, 1932.
    (9 Pac. [2d] 963.)
    J. W. Bolen and King & Crawford, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Pontotoc county of seduction and Ms punishment fixed at confinement in the penitentiary for a term of 60 days and a fine of $1,000.

The record discloses that at the time charged defendant, who was of the age of 23 years, seduced under promise of marriage one Zenobia Jervis, of the age of 20 years. The prosecutrix testified to the acts of intercourse under promise of marriage. The only corroboration of her testimony is that she kept company with defendant and that she told her mother and made some quilts preparatory to getting married. This testimony was weakened somewhat on cross-examination. Defendant admits he had intercourse with prosecutrix, but denies he ever made any promise of marriage. Several male witnesses testified that at about the time charged they had intercourse with prosecutrix. This testimony was denied by prosecutrix. The corroboration required by section 2703, Comp. Stat. 1921, is not strong, but it is sufficient to carry the case to the jury and to sustain the judgment. Hill v. State, 46 Okla. Cr. 56, 287 Pac. 1080. The testimony offered by defendant appears credible, but it is a well-settled rule of this court that the jury is the exclusive judge of the weight of the evidence. If there is a clear conflict in the evidence, or if it is such that different inferences can be drawn from it, the finding of the jury will not be disturbed, unless the verdict is so clearly against the weight of the evidence as to indicate that it is a result of passion or prejudice. We will not reverse the judgment on the weight of the evidence. Argument is made that the court erred in refusing certain instructions requested by defendant, and. in several of the instructions given. Some of the instructions complained of are involved and inaptly worded. However, considered as a whole, they are as favorable to defendant as the law warrants, and could not have misled the jury.' Such errors as they contain are harmless. Upon consideration of the entire case, we are of the opinion that justice requires the judgment be modified by striking out the imprisonment assessed. As modified, the case is affirmed.

DAVENPORT, P. J., and CHAPPELL, J., concur.


author: CHAPPELL, J.

text:
    ROSCOE BRANT v. STATE.
    No. A-8269.
    March 4, 1932.
    Rehearing Denied April 9, 1932.
    (9 Pac. [2d] 963.)
    C. B. Leedy, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Ellis county of the crime of grand larceny, and his punishment fixed by the jury at imprisonment in the reformatory at Granite, Okla., for five years.

Defendant contends, first, that the evidence of the state is insufficient to support the Verdict of the jury, because the accomplice is not sufficiently corroborated.

Defendant was jointly charged with one John Fagala with the larceny of wheat belonging to one Gregory. Fagala, testifying for the state, said that he and defendant took Fagala’s truck and went, late in the night, to Gregory’s granary, and stole a load of wheat; that they took this wheat in a roundabout way through the town of Ar-nett tO' Fargo, a long distance, from the place where the same was stolen. Defendant admits everything that Fagala testified to, except that, in explanation of his connection with the crime, he testified that he believed Fagala had bought this load of wheat from Gregory and had a right to take it and sell it, and that the defendant’s connection with the transaction was entirely innocent.

The trial court instructed the jury that Fagala was an accomplice of defendant, and that a conviction could not be had upon his testimony alone; but that it was necessary for the state to establish the guilt of defendant, by other evidence, beyond a reasonable doubt.

Section 2701, C. O. S. 1921, while providing that a conviction cannot be had upon the testimony of an accomplice, unless such testimony is corroborated, only requires such corroboration as tends to connect the defendant with the commission of the crime. This corroboration need not be direct, but may be circumstantial only. It is not essential that the corroborating evidence shall cover every material point testified to by the accomplice, or be sufficient alone to warrant a verdict of guilty. When the accomplice is corroborated as to' some material fact, or facts, by independent evidence of the crime, the jury could from that infer that he spoke the truth as to all. The corroborative testimony may not necessarily fall from the lips of other witnesses. The defendant may provide corroborative proof by his own conduct, such as by confessing the crime, by admissions on disputed points or by failure to produce available evidence.

According to defendant’s own testimony, he went with Fagala, a boy only nineteen years of age, late at night, and helped him break into Gregory’s granary and take wheat that Fagala claimed he had bought; helped him shovel the wheat on to the truck; bought gas for the trip made by the truck; got oil for the truck before they started on the trip; and did everything that Fagala did that would make him guilty of larceny; that defendant met Fagala at the town of Gage the next morning after the wheat was stolen; Fagala testifying he gave defendant $50 in currency at Gage, in bills of large denomination, received from the sale of the stolen wheat; that on the same morning defendant deposited $50 in cash in the bank at Shattuck. The banker at Shattuck testified that defendant deposited $50 in the bank, and that the currency was in bills of large denomination.

When arrested, defendant denied any knowledge of the larceny of the Gregory wheat, which was entirely inconsistent with the testimony given by him on the witness stand.

Fagala is not only corroborated by the admission of defendant that he went to Gage, that he talked to Fagala, but also' by the fact that defendant deposited in the bank at .Shattuck the same amount of money in currency that Fagala says he gave him in Gage on that day. Fagala is also' corroborated by one Oakes, who was at the filling station and says he saw the defendant and Fagala engaged in close conversation on that morning.

The fact that defendant admits he went with Fagala, in the nighttime, and helped break into a granary and take wheat and haul it a long distance from his home to sell, was sufficient to put the defendant on notice that this wheat was being stolen. Honest people do not transact business in that way. Another circumstance which the jury had a right to consider was the fact that, when defendant went to Shattuck on his way to Gage to meet Fagala, he was going at least eight miles out of his way. Under the facts and circumstances in the case, the jury-had a right to infer from the admissions defendant made in his testimony, and from the fact that he met Fagala in Gage and deposited the $50, that Fagala was telling the truth about defendant helping him steal the wheat and dividing the money with him after the wheat was stolen.

This court has held in numerous cases that the testimony of an accomplice need not be corroborated in every particular. The corroboration is sufficient if it covers the material portions of the testimony. If such corroboration shows that the accomplice is testifying truthfully in some particulars, the jury will be justified in inferring that he has testified truthfully concerning other matters about which there is no corroboration. Hollingshead v. State, 21 Okla. Cr. 306, 207 Pac. 104; Underwood v. State, 36 Okla. Cr. 21, 251 Pac. 507; McCurdy v. State, 39 Okla. Cr. 310, 264 Pac. 925; Cloud v. State, 41 Okla. Cr. 395, 273 Pac. 1012; Patterson v. State, 42 Okla. Cr. 255, 275 Pac. 387; Fortman v. State, 45 Okla. Cr. 23, 280 Pac. 1109; Morton v. State, 46 Okla. Cr. 361, 287 Pac. 1087.

It is apparent from the record that there is considerable evidence, both direct and circumstantial, that tends to connect the defendant with the commission of this crime. That being true, the weight to be given such evidence was for the jury. It was not error, therefore, for the trial coairt to overrule defendant’s motion for a new trial on the ground that the accomplice was not sufficiently corroborated.

It is next contended that the trial court erred in permitting the county attorney, over the objection of defendant, to indorse the names of additional witnesses upon the information just before the close of the trial of this case.

The names of the witnesses which the court permitted the county attorney to indorse were the names of the witnesses against this defendant in cause No. 8270, 53 Okla. Cr. 221, 9 Pac. (2d) 965, now on appeal in this court. The purpose of permitting these names to be indorsed was to afford additional evidence corroborating the accomplice, Fagala, and also to show a plan or system on the part of this defendant to' steal wheat, in connection with John Fagala and Otha Fagala. In cause No. 8270 the defendant was convicted of stealing wheat, the property of Tom Weaver, in conjunction with Otha Fagala, the brother of John Fagala, who was the accomplice in this case. The purpose of the evidence produced by these witnesses was also to show circumstances tending to establish the guilty knowledge and intent of defendant in the taking of this particular wheat.

It was within the discretion of the trial court in a case of this character to permit the indorsement of the names and testimony of additional witnesses during the progress of the trial. This evidence being competent, and no abuse of discretion appearing upon the record, it was not error for the court to permit the indorsement of the names of the additional witnesses and to permit their testimony to go to' the jury.

Defendant next contends that the court erred in giving instruction No. 5, on the question of corroboration of an accomplice.

An examination of the instruction proposed by defendant and that given by the court discloses that the instruction given by the court was more favorable to the defendant than the one requested, and more favorable than the law requires, in that the court, instead of saying, “By evidence tending to connect the defendant with the commission of the crime” said: “Tending to establish the fact that the defendant did, in fact, commit the crime.”

Under this instruction the court required a greater degree of proof corroborating Fagaia than that fixed by the statute or the decisions of this court. The error, if any, being favorable to' defendant, he cannot complain thereat.

From a consideration of the whole record, we conclude that defendant had a fair trial, and that the evidence clearly establishes his guilt. The cause is therefore affirmed.

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


text:
    ROSCOE BRANT v. STATE.
    No. A-8270.
    March 4, 1932.
    Rehearing Denied April 9, 1932.
    (9 Pac. [2d] 965.)

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

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Ellis county of the crime of grand larceny and his punishment fixed by the jury at imprisonment in the state reformatory at Granite, Okla., for a period of three years.

In the case at bar, defendant raises the question of the sufficiency of the corroboration of the accomplice, Otha Fagala, who was jointly charged with defendant in the lower court with the larceny of wheat from one Weaver; and also raises the question of the court’s instruction on the testimony of an accomplice.

The same questions were raised in the case of Brant v. State (No. 8269), 53 Okla. Cr. 216, 9 Pac. (2d) 963, decided at this sitting of the court, where defendant was charged with one John Fagala with the larceny of wheat from one Gregory.

The evidence in the case at bar being practically the same as in No. 8269, it is not deemed necessary to further discuss those subjects in this opinion. For a statement of the facts and discussion of the law see Brant v. State, 53 Okla. Cr. 216, 9 Pac. (2d) 963.

Defendant contends that the court erred in overruling his plea of former jeopardy.

It appears from the record that an information was filed in the district court of Ellis county against the defendant and one John Fagala, charging the larceny of 88 bushels of wheat, of the value of $65, from one Jim Gregory, and trial was had thereon and defendant found guilty. It further appears from the record that another information was filed against the defendant and Otha Fa-gala, charging the larceny of 85 bushels of wheat, of the value of $63.75, from one Tom Weaver, which charge constitutes the case at bar. These offenses were both committed on August 6, 1930. .

When the case at bar was called for trial, defendant filed his plea of former jeopardy and former conviction in the other case, and demanded an abatement thereof. Upon hearing before the court, this plea was denied, and defendant now predicates error thereon.

An examination of the motion of defendant and the evidence introduced discloses that the offenses were entirely independent and separate. v

In the recent case of Orcutt v. State, 52 Okla. Cr. 217, 3 Pac. (2d) 912, this court had under consideration the question of former jeopardy, and in the body of the opinion, at page 221, said:

“A putting in jeopardy for one act is no bar to a prosecution for a separate and distinct act, merely because they are so closely connected in point of time that it is impossible to separate the evidence relating to them on the trial of the one of them first had.”

For a full discussion of the question, see Orcutt v. State, supra.

In Harris v. State, 17 Okla. Cr. 69, 175 Pac. 627, this court said:

“Where the plea of former acquittal shows an acquittal of an offense other than that for which defendant is informed against and placed on trial, the failure of the trial court to submit the issue of former acquittal to the jury under such circumstances was not error.”

There is no merit in defendant’s contention of former jeopardy.

For the reasons stated, the cause is affirmed.

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


text:
    ROSS BOND v. STATE.
    No. A-8300.
    April 9, 1932.
    (11 Pac. [2d] 200.)

      L. A. Justus, Jr., for plaintiff in error.
    Tlie Attorney General, for the State.
   CHAPPELL, J.

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

The evidence of the state is too revolting, to set out in this opinion.

Defendant contends, first, that the verdict of the jury is not sustained by the evidence and is contrary to' law.

The particular complaint of defendant is that the testimony of the complaining witness is incredible and unbelievable and is not sufficiently corroborated.

The story told by the prosecuting witness standing alone is so astounding as to seem incredible, were it not for the fact that she is corroborated upon practically every material question. She testified that the acts of sodomy were committed in a violent and brutal manner, sufficient to overcome her resistance, and that her legs and body were bruised, her neck stiff and swollen, and teeth marks upon her body where she was bitten. An aunt of prosecuting witness, and a nurse who examined her shortly after the acts complained of, testified that she had numerous bruises and black and blue spots upon her person; that several days after the acts complained of there were plain marks of biting on her body showing at least five pronounced teeth marks; that her neck was stiff; and swollen so that it was necessary to turn her body in order to turn her head. The doctor who examined her stated that the rectum had been penetrated by some blunt instrument on numerous occasions; that the mucus membrane was red and swollen, and that there was a discharge caused by infection.

The record discloses that the prosecuting witness left her husband on the morning of October 8th, and complained to her aunt and exhibited the bruises and complaint of her indignities on the same day. It seems incredible that a normal human being could commit such a crime, but the story of the prosecutrix is not unreasonable. Acts of this kind are sometimes committed.

This court has innumerable times held that the weight of the evidence and the credibility of the witnesses is exclusively for the jury; that the function of this court is limited to ascertaining whether there is a basis in the evidence on which the jury could reasonably conclude that the accused is guilty as charged, and, where there is such a basis, the cause will not be reversed for insufficiency of the evidence.

When all of the evidence, facts, and circumstances in the case are considered, there is ample basis for the verdict of guilty.

Defendant next contends that the court erred in overruling his demurrer to the indictment, for the reason that the allegation “on or about the-day of October, 1930,” was an insufficient allegation of time and place.

Section 2559, C. O. S. 1921, provides:

“The precise time at which the offense was committed need not be stated in the indictment or information; but it may be alleged to have been committed at any time before the finding thereof, except where the time is a material ingredient in the offense.”

In Star v. State, 9 Okla. Cr. 210, 131 Pac. 542, this court had under consideration this question and in the body of the opinion at pages 212-213 of 9 Okla. Cr., 131 Pac. 542, 543, said:

“The contention of counsel for appellant is that time and place should not merely be mentioned at the beginning of the indictment, but should be repeated at each issuable and triable fact. They cite a number of authorities sustaining this contention. There can be no question but that this was the ancient rule, but the conditions which brought this rule into existence have long since passed away and ceased to exist. Originally defendants were not allowed to be represented by counsel or to' testify in their own behalf. Neither were ’they allowed to summon witnesses and place them upon the stand for the purpose of explaining or contradicting testimony for the prosecution. It was deemed derogatory to the crown to permit the witnesses in its behalf to be contradicted. The injustice of these laws was so manifest that the trial judges, in order to mitigate the hardships of the law, invented and built up an artificial technical system for the protection of men charged with crime, who' otherwise would be at the mercy of the prosecution. But this condition, as before stated, no longer exists, and the technical system which was built up solely for the purpose of mitigating the rigors of the law should also cease to exist. Even if this did not result from common sense and justice, our statute in express terms repeals the artificial rules of pleading established by the common law. Section 6700, Comp. Laws 1909 [Bev. Laws, § 5742].”

Defendant’s counsel made no objection at the time of the trial to- the various dates fixed by the prosecuting witness and made no request that the state be required to elect upon which date and act it would rely for a conviction, but treated the evidence as establishing only one offense.

The right of defendant, in the trial of a case of this character, to compel the state to elect upon which act or date it will rely for a conviction, is one that may be waived, and is waived where proper steps are not taken to bring the question before the court.

Defendant next contends that the court erred in refusing to give his requested instruction to the effect that bastardy proceedings are in the nature of a civil action, and do not constitute a criminal offense.

It appears from the record that the defendant offered evidence to establish his good moral character; that in the cross-examination the state was permitted to ask the witnesses if they had heard of his conviction for bastardy in Okmulgee county. Defendant on cross-examination was also asked if he had been convicted of bastardy. A cross-examination of this kind is proper. Russell v. State, 17 Okla. Cr. 164, 194 Pac. 242; Carroll v. State, 24 Okla. Cr. 26, 215 Pac. 797; Teel v. State, 53 Okla. Cr. 200, 11 Pac. (2d) 197.

The general instructions of the court cover all the issues in the case. It was not error, therefore, for the trial court to refuse the requested instruction.

Defendant complains of other errors, but they are all without substantial merit. The cause is therefore affirmed.

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


text:
    W. M. (BILLY) SCHMULBACH v. STATE.
    No. A-8164.
    Nov. 21, 1931.
    Rehearing Denied April 9, 1932.
    (9 Pac. [2d] 966.)
    F. W. Church, for plaintiff in error.
    J. Berry King, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., Perry Porter, Co'. Atty., and Joe W. Howard, Asst. Co. Atty., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Ottawa county of murder and was sentenced to life imprisonment.

The record discloses that on October 4, 1930, defendant, in the town of Picher, shot and killed one J. Frank Carloek. Defendant at the time was an outside guard for a Picher bank. Deceased, a druggist at Picher, was indebted to defendant in the sum of $1,000, and some ill feeling existed between them. Carloek had been hunting and started to take a small rifle from the rear of the car when defendant fired the first shot, hitting him in the shoulder. Carloek dropped the gun and ran. Defendant fired again, and as Carloek ran from him he fired twice more; one shot hitting him, the other missing. Two bullets entered the back and another the side. Carloek died on the way to the hospital. We deem it unnecessary to make any further recital of facts.

It is earnestly urged that the evidence is insufficient to sustain the judgment, or at least it shows no more than manslaughter in the first degree. This contention is untenable. The evidence, though to some extent conflicting, amply sustains the judgment. Consonant with the general rule, it has been many times held by this court that where the evidence is such that the jury may reasonably and logically find the guilt of a defendant, even though it is conflicting or such that different inferences may reasonably be drawn therefrom, nevertheless the questions of fact and the weight of the evidence are for the jury, and their verdict will not be set aside on appeal.

Some complaint is made that the instructions are erroneous and misleading. This argument is directed to instructions 6, 7, 20, 21, 22, and 24. We have examined these instructions with care. They are instructions usually given in homicide cases where a plea of self-de-fen se is interposed. They also' go- to the question of threats, previous difficulties, and the character of deceased. The objections are not of sufficient merit to require quoting these rather lengthy instructions. There is no material error in any of them and considered as a whole they correctly cover the questions involved.

Defendant also argues briefly that the court erred in overruling defendant’s affidavit for a change of venue from the county judge sitting as a committing magistrate. Upon this point it appears the preliminary complaint was filed October 6, before the magistrate, who set the preliminary for October 15, on which latter date an affidavit for change of venue was filed as follows:

“W. M. Schmulbach, after being first duly sworn on oath,' says that he is the defendant above named, charged by complaint before the Honorable Ouddie E. Davidson, county- judge, sitting as an examining magistrate, that he has good reasons to believe and does believe that the Honorable Ouddie E. Davidson is so biased and prejudiced against him that he cannot have a fair and impartial examination before said magistrate.
“He, therefore, asks that he be granted a change of venue and that said cause be transferred to some other justice of the peace. * * *”

This was overruled, the preliminary hearing had, and the order and transcript of the magistrate in part is:

“October 6, 1930. Dee T. Watters, sheriff of Ottawa county, state of Oklahoma, brings W. M. Schmulbach, defendant, before me as magistrate. I advised the defendant of his statutory rights, of the charge against him and of his right to the aid of counsel in every stage of the proceedings, and also of his right to waive an examination, and delivered to him in person a copy of the complaint with a list of the witnesses indorsed on complaint. Hearing set for October 15, 1930. Affidavit for change of venue filed; same denied, and defendant allowed an exception. October 15, 1930. Cause comes on for preliminary hearing. The state is represented by the county attorney and his assistant, Mr. Howard, and the defendant is present in person and by his counsel F. W. Church and A. M. Armstrong. The court hears the evidence of the state, and at the close of which the defendant announces that he has no testimony to offer at this time. Whereupon the court finds that the offense of murder has been committed and that there is sufficient cause to believe the defendant guilty thereof. I order that he be held to answer the charge of murder at the next term of the district court of Ottawa county, and that he be committed to the custody of the sheriff to be held without bail.”

The applicable statutes are sections 2484, 2485, and 2966, Comp. Stat. 1921. These statutes are pari materia and are to be construed together. Some confusion seems to have crept into the decisions of this court, apparently by reason of the failure to properly interpret the case of Rea v. State, 3 Okla. Cr. 276, 196 Pac. 384, 139 Am. St. Rep. 954. In that case Judge Furman held unconstitutional the applicable statute, section 6647, Snyder’s Comp. Laws 1909. The Rea Case, however, was a misdemeanor triable in the county court, and it was there sought to have a change of judge under the statute quoted in full in the opinion. An examination of that statute discloses that an accused was nowhere provided an opportunity to change the venue before witnesses were subpoenaed on the part of the state. There was no reason under that statute why a county attorney might not at the time he filed the information, have subpoena issued for his witnesses and thereby entirely deprive an accused of the constitutional guaranty that justice shall be administered without prejudice. Section 6, art. 2, Const. That is, under such circumstances an accused person would have no opportunity to apply for a change of judge. Under the provisions of section 2966, supra, it is expressly provided that:

“No witnesses shall he subpoenaed for either party until after the defendant has been brought before the justice, and been offered an opportunity to change the venue. * *

Plainly, the Eea Case, supra, has no; reference to a state of facts as in the instant case, and the case of Murray v. State, 43 Okla. Cr. 286, 278 Pac. 407, and other cases confuse the statute construed in the Eea Case and sections 2485 and 2966, Comp. Stat. 1921. Brown v. State, 50 Okla. Cr. 199, 296 Pac. 989, overrules the Murray Case in holding section 2966 not unconstitutional. In the instant case, the defendant appeared before the magistrate on October 6, and was informed of his statutory rights but did not file an affidavit for change of venue until the date of the preliminary and after the witnesses were subpoenaed and in attendance on the trial. His affidavit came too late; the trial court did not err in overruling the application.

Defendant also contends the court erred in overruling his application for a change of venue from the county. This application sets out in substance that defendant cannot have a fair trial in the county because of the prejudice of the citizens against him and that the newspapers of the county have contained inflammatory accounts of the homicide. It is supported by three affidavits. The state filed twelve counter affidavits. Under the rule announced by many decisions of this court, there was no error in overruling the application. Hamilton v. State, 38 Okla. Cr. 62, 259 Pac. 168.

Some other matters are discussed in the briefs, but no material error is made to appear.

The case is affirmed.

DAVENPORT, P. J., and CHAPPELL, J., concur.


text:
    S. A. MANESS v. STATE.
    No. A-8289.
    Feb. 26, 1932.
    Rehearing Denied April 9, 1932.
    (9 Pac. [2d] 968.)
    Carlton & Akin, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the superior court of Pottawatomie county of the crime of manslaughter in the first degree, and his punishment fixed by the jury at imprisonment in the state penitentiary for a period of eight years.

The evidence of the state was that deceased was lease superintendent for the Mid-Continent Oil Company; that defendant was a roustabout working for the same company on another lease; that defendant lost his job and was angry at deceased because he thought he was to blame; that defendant said he would “go there and stomp him”; that defendant obtained leave of absence on the evening of October 15th and on the morning of October 16th drove to the lease where deceased was working; that defendant got out of the car about fifty yards away and walked up to where deceased was standing, talking to another employee of the Mid-Continent; that neither deceased nor defendant said anything; that defendant immediately struck deceased a blow in the face, knocking him down; that he struck him two- or three times with his fist and kicked him three or four times in the side and back, and then took deceased by the collar and raised him up to his knees and struck him another blow in the face; that as defendant left he said he had been working for the company for four years and he had been fired over a. ball game; that deceased was taken to the hospital, where he died a short time later; that a post-mortem was held, and that deceased’s nose was broken flat, his face bruised, three ribs broken and the spleen ruptured as a result of the kicks in the side; that death was caused by the ruptured spleen; that defendant was arrested the next morning and made a statement to the officers and the county attorney in which he said deceased said nothing to him; that he hit him immediately, and that he did not give deceased a chance to hit him or do' anything; that he went up there to beat and stomp hell out of him and done a good job.

Defendant, testifying for himself, said that deceased was in the habit of carrying a gun and had threatened him with it; that, when he went up to where deceased was, deceased said, “You bastard, what do you want?” and put up his hands, and that he immediately hit him and knocked him down; that he fell on his hands and knees, and that as he started to get up he said he would kill defendant; that defendant was afraid he had a gun, and attempted to kick his arm to keep him from getting the gun, and denied that he made the statements to the officers and the county attorney or to anybody else that were testified to by the state.

Defendant contends first that the court erred in permitting the state to amend the information after the case was called for trial.

It appears from the record that the original information charged as follows:

“The above named S. A. Maness then and there being did then and there unlawfully, knowingly, willfully, felo-niously, intentionally and wrongfully, and with premeditated design to- effect the death of one J. L. Linville, strike and beat the said J. L. Linville upon the head and body of the said J. L. Linville, with a blunt instrument, the exact description of which is unknown, said instrument being then and there had and held in the hand of him, the said J. L. Linville, then and there and thereby inflicting upon the body of him, the said J. L. Linville, one mortal wound, of which mortal wound the said J. L. Linville did then and there linger and die. * * *”

When the case was called for trial, the state discovered that said unknown instrument was said to be held in the hand of J. L. Linville, instead of the hand of S. A. Maness.

On proper motion, the court permitted the state to strike out the name J. L. Linville and insert the name S. A. Maness. Defendant contends that this is an amendment in substance, which the court had no right tO' permit.

In Weathers v. State, 35 Okla. Cr. 292, 250 Pac. 805, this court had under consideration this precise question, and there said:

“Where an information is sufficient in all other respects, a mere clerical error or mistake in the use of a name does not render the information invalid, unless it has actually prejudiced the defendant or tended to his prejudice in respect to a substantial right.”

In the body of the opinion, this court says:

“The first assignment argued in the brief is that the information does not state facts sufficient to constitute a public offense. The information correctly charges the crime of murder, except that a mistake was made in writing the name ‘William Weathers’ in one place where it was obviously intended to have written the name of ‘Dave Hudson.’ ”

Defendant next contends that the trial court erred in overruling his application for a continuance upon the amendment being permitted.

Defendant’s counsel dictated into the record an unverified motion to continue the case.

Section 2512, C. O. S. 1921, provides:

“An information may be amended in matter of substance or form at any time before the defendant pleads, without leave, and may be amended after plea on order of the court where the same can be done without material prejudice to the right of the defendant; no amendment shall cause any delay of the trial, unless for good cause shown by affidavit.”

This application for continuance, not being verified., was insufficient. It was not error, therefore, for the trial court to overrule the same.

Defendant next contends that the court erred in refusing to give requested instruction on manslaughter in the second degree.

There being no evidence in the record tending to establish this degree of the offense, the requested instruction was properly refused.

Defendant next contends that the court erred in excluding testimony offered by the defendant.

The court permitted defendant to testify that deceased was in the habit of carrying a pistol, and that defendant had seen this pistol on several occasions and deceased had threatened defendant with the same. Upon objection of the state, the court refused to permit Wiley Gwinn, a witness for defendant, to- testify that deceased was in the habit of carrying a gun, and did permit the state to show, by deceased’s wife, that he did not own a gun and was not in the habit of carrying one, but refused to permit the state to show by other witnesses that deceased was not in the habit of carrying a gun. In other words, the court permitted the defendant to testify that deceased was in the habit of carrying, a gun and permitted the wife of deceased to testify to the contrary, but refused to permit other witnesses for either side to' testify upon the question. We do not understand the theory on which the court excluded this testimony. It seems to us that a casual consideration of the rules of evidence by the court would have caused him to admit this evidence. It was clearly competent.

It was error for the court to exclude the testimony of the witness, Gwinn, but it is not every error that requires a reversal of the case.

Section 2822, O. O. S. 1921.

The uncontradicted evidence of all the witnesses, including the defendant, is that they saw no gun on or about the deceased, and that none Avas found upon his person after the assault.

When an error of this character is] committed, this court will examine the whole record, and where it clearly appears from the evidence that the defendant is guilty, the cause will not be reversed for such error.

Defendant complains of other errors, but they are all without substantial merit.

For the reasons stated, the cause is affirmed.

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


text:
    W. T. SMITH v. STATE.
    No. A-8297.
    March 18, 1932.
    Rehearing Denied April 9, 1932.
    (9 Pac. [2d] 970.)
    H. A. Johnson, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Noble county of the unlawful possession of intoxicating liquor, and his punishment fixed by the jury at a fine of $100 and imprisonment in the county jail for a period of 30 days.

Defendant contends first that the affidavit and search warrant were insufficient to authorize a search of defendant’s premises. This contention is without any merit.

Defendant next contends that the court erred in overruling his application for a continuance.

On July 22, 1931, when the case was called for trial, defendant filed a duly verified motion for a continuance sufficient upon its face to entitle him to- have the case continued.

An application for continuance is addressed to the sound discretion of the trial court, and, unless an abuse of this discretion is shown, a judgment will not be reversed on appeal.

In Franks v. State, 8 Okla. Cr. 71, 126 Pac. 582, this court said:

“When a motion for continuance is filed by an accused setting up sufficient grounds to* justify a postponement, it is an abuse of discretion for the trial court to overrule the same, in the absence of any showing that the motion is without merit or made in bad faith.” Payne v. State, 10 Okla. Cr. 314, 136 Pac. 201; Smith v. State, 10 Okla. 544, 139 Pac. 709.

It appearing upon the record that the trial court abused its discretion in refusing to grant a continuance, the case is reversed and remanded, with instructions to the trial court to' proceed with the case in accordance with this opinion.

DAVENPOBT, P. J., concurs. EDWABDS, J., absent, not participating.


text:
    BOB TERRELL v. STATE.
    No. A-8189.
    Nov. 14, 1931.
    Rehearing Denied April 9, 1932.
    (9 Pac. [2d] 961.)
    Miller & Miller, W. S. Paden, and Finis M. Walker, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Cherokee county of shooting at another with intent to kill, and was sentenced to serve a term of seven years in the state penitentiary.

Judgment was rendered December 17, 1930. The appeal was lodged in this court June 17, 1931. No briefs in support of the appeal have been filed.

We have examined the record with care. The evidence discloses that about the time charged two burglaries were committed at the town of Hulbert. Officers were called to the scene, and, as a result, two days later the sheriff and his deputy discovered a car answering the description of the car for which they were searching as being connected with the burglaries. No one was in sight about the car. The deputy sheriff started to open the car, and about this time defendant shouted to> him from a point of concealment, and the officer turned and discovered defendant with a rifle in his hand, and several shots were exchanged between the officer and defendant. The defendant did not take the stand. The evidence sustains the judgment. No fundamental error is apparent.

The case is affirmed.

DAVENPORT, P. J., and CHAPPELL, J., concur.


author: DAVENPORT, P. J.

text:
    ED WHITTLE v. STATE.
    No. A-8153.
    Feb. 19, 1932.
    Rehearing Denied April 9, 1932.
    (9 Pac. [2d] 960.
    Lon Morris & Son, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was by information charged with assault with intent to kill, was tried and convicted of assault with a dangerous weapon with intent to do' bodily harm, and was sentenced by the court to imprisonment in the state penitentiary for one year, and appeals.

The testimony on behalf of the state, in substance, is that Lum Kanada was the father of Raymond Kanada; on the day of the trouble Raymond Kanada and Charlie Whittle, a son of defendant, Ed Whittle, had been hunting, and Charlie Whittle told his father, who was a city marshal and game ranger, that Raymond Kanada had been hunting and that he did not possess a hunting license. The testimony further shows the defendant in this case met Raymond Kanada and asked him what he had been doing and received a reply from the boy that he had been hunting, and further stated he did not have a hunting-license. The defendant took the gun away from Raymond Kanada, but did not make any arrest and advised the Kanada boy that when he came down to the justice of the peace office the next day and paid his fine his gun would be returned to him. Later in the day Lum Kanada learned of this, and when he met the .defendant on the street he asked for Raymond’s gun. The defendant told Kanada he would give him the gun when he got “damn good and ready.”

It is further shown by the record that the defendant and Lum Kanada engaged in quite a heated argument. During the argument the prosecuting witness demanded the payment of a bill which he claimed was long past due, and defendant replied, “I will pay it when I get good and ready.” Lum Kanada then told the defendant to take the gun off and he could make him get ready, and the defendant replied he was not going to take the gun off. The testimony of eyewitnesses tended to show that the prosecuting witness again demanded that he pay him, and stated that after defendant contracted the bill that he quit trading with him; the defendant told Kanada he was a liar, and Kanada replied he was a “damn lying son of a bitch”; the defendant started to draw his gun and Kanada started to run; defendant fired three shots rapidly as Kanada ran from him, hitting Kanada; one of the shots penetrating his left thigh. The testimony further shows that while the prosecuting witness was running and defendant was shooting, he said, “Run, you son of a bitch.”

The defendant testifying in his own behalf admits the taking of the gun from Lum Kanada’s son; that he and Lum Kanada met on the street and a conversation took place between them in substance as detailed by the state witnesses up to and including just before the defendant began shooting. His testimony conflicts with the state from that point on. Defendant states the defendant called him a “damn lying son of a bitch,” and advanced toward him and made a motion as if to draw some hind of a weapon, and he fired in self-defense.

Several errors have been assigned by the defendant as grounds for reversal of this case. In his brief the argument is presented under three separate propositions. The first proposition urged by the defendant is that the court erred in giving instruction No. 9, which is as follows : “An officer has no legal right to take lawful property from a citizen without legal process therefor, or unless he has the citizen under arrest but such conduct on the part of an officer cannot be construed as such an overt act as to constitute provoking of a difficulty with another.”

The defendant earnestly insists that the giving of the instruction quoted was prejudicial to his rights, and insists that when the defendant ashed Raymond Kanada for the gun he delivered the gun to the officer without his having to use force to get the gun from him. The defendant urges that because the gun was turned over without a fight between Raymond Kanada and defendant and without the defendant forcibly taking it from him, the court should not have given the instruction complained of. The fact that the defendant took the gun from the prosecuting witness’ son is the cause of the difficulty. The boy knew the defendant was an officer and yielded to his demand.

The officer had no right to make the request and demand that the boy turn the gun over to him. Within the meaning of the law it was a forcible taking of the property and the officer admits he had no warrant for Raymond Kanada’s arrest and did not arrest him.

The instruction No. 9, complained of, was applicable to the facts as disclosed by the record and did not prejudice the rights of the defendant.

Several other questions are urged by the defendant as grounds for a reversal of this case. The evidence is conflicting as to what occurred at the time the defendant began shooting. The testimony on behalf of the state shows that the prosecuting witness was running from the defendant at the time the shots were fired, and that testimony is born out by the physical facts as to the location of the wounds; the doctor’s testimony showing the bullet entered the rear of the left thigh passing through to the front. The question of the sufficiency of the evidence was a question for the jury, and this court will not set aside the verdict of the jury on the ground of the insufficiency of the evidence where there is any competent evidence to sustain the verdict.

The evidence is sufficient to sustain the judgment. The instructions of the court fairly declared the law as applied to the facts in the case. In fact, the instructions 'were more liberal to the defendant than to the state. There are no errors in the record sufficient to warrant a reversal.

The cause is affirmed.

EDWARDS and CHAPPELL, JJ., concur.


text:
    FLO NEFF TUCKER v. STATE.
    No. A-8237.
    April 9, 1932.
    (10 Pac. [2d] 293.)
    Edwards & Robinson, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, in this opinion referred to as the defendant, was convicted of driving an automobile while under the influence of intoxicating liquor, and her punishment fixed by the court at confinement in the penitentiary at McAlester for a period of one year.

The judgment in this case was rendered on the 12th day of February, 1931, and the petition in error, and a portion of the record, was not filed until the 18th day of August, 1931, which was six months and six days after the rendition of the judgment.

Section 2808, C. O. S. 1921, is as follows:

“In misdemeanor cases the appeal must he taken within 60 days after the judgment is rendered; Provided, however, that the trial court or judge may, for good cause shown, extend the time in which such appeal may be taken not exceeding 60 days. In felony cases the appeal must be taken within six months after the judgment is rendered, and a transcript in both felony and misdemeanor cases must be filed as hereinafter directed.”

The plaintiff in error having failed to file her appeal in this court within the time allowed by the statute, this court acquired no jurisdiction to entertain the appeal, and the same is dismissed, and case remanded to the trial court, with directions to enforce its judgment.

EDWARDS and CHAPPELL, JJ., concur.


text:
    BILL MILLER et al. v. STATE.
    No. A-8268.
    April 9, 1932.
    (10 Pac. [2d] 292.)
    T. H. Davidson, for plaintiffs in error.
    J. Berry King, Atty. Gen., (Gus Rinehart, Asst. Atty. Gen., on the brief), for the State.
   CHAPPELL, J.

Plaintiffs in error, hereinafter called defendants, were convicted in the district court of Muskogee county of the crime of conjoint robbery, and the punishment of each of them assessed by the jury at imprisonment in the state penitentiary for five years.

The evidence of the state was that the parties are negroes; that Lewis McPhearson visited the place where Bill Miller, Willie Miller, and Hattie Miller lived; that he bought some whisky there and became intoxicated; that while he was drunk, Bill Miller caught him by the neck and shoulders and Willie Miller by the feet; that they held his body up from the floor and Hattie Miller went through his pockets and took $25 in currency and a gold watch. The defense was that Bill Miller won the watch and money from McPhearson shooting craps.

The defendants contend first that the court erred in permitting the county attorney to ask improper, incompetent, and prejudicial questions.

On cross-examination the county attorney asked the defendants if they had ever been arrested, charged and convicted of any crime. This question was objected to and the objection promptly sustained by the court as to form. Thereupon the court advised the county attorney that he might ask if they had been convicted of a violation of any state law.

Biller Miller admitted that he had been convicted on three different occasions, serving 11 months in one case, 90 days in another, and 60 days in another. Defendant Hattie Miller admitted that she had been convicted for violation'of the prohibitory liquor laws.

While the questions asked by the county attorney were improper as to form, we are unable to see where these questions could have prejudiced the defendants. The evidence of the state is ample to establish the guilt of the defendants, and their admissions made upon cross-examination show that they had been convicted on numerous occasions. While the questions asked were improper, the error was not sufficient to require a reversal of the case under the state of this record,

Defendants next contend that the court erred in permitting the county attorney to make highly improper, incompetent, and prejudicial statements to the jury in his argument.

The particular complaint shown by the record is:

“Mr. Davidson: We object to that portion of the county attorney’s statement, that these defendants are people that when they get some white man in their place they roll him. Mr. Oldham: Just state it correctly. And get them drunk, then they proceed to roll them. The Court: To start in with the county attorney didn’t say just that. Here is about what the county attorney said: ‘Who are these people under the evidence in this case they make their living by handling whisky, and if they get a white man or a negro down there they roll him just like they did this man. Mr. Oldham: And get him drunk enough that they think he don’t know where his money has gone. The Court: That is about it. Mr. Davidson: To which we object as incompetent, irrelevant, immaterial and prejudicial. The Court: Overruled. He may draw his own conclusion from the evidence.”

An examination of the record discloses that the conclusions drawn by the county attorney in his argument are fairly included within, the evidence.

Defendants next contend that the verdict of the jury was not responsive to the issue joined by the information, and their plea thereto, and is inconsistent and illegal.

The information charges robbery by force, which is robbery in the first degree. Defendants’ counsel requested the court to instruct the jury on conjoint robbery because the penalty is less. At the time the instruction was requested and given, the court suggested to counsel that it might be necessary to amend the information to' charge conjoint robbery, but defendants’ counsel said that the crime of conjoint robbery was necessarily included in the charge in the information and that no amendment was necessary.

In Winfield v. State, 18 Okla. Cr. 257, 191 Pac. 609, this court said:

“Where there is a prosecution and conviction of robbery in the first degree, it is immaterial that the evidence would authorize a conviction of a co defendant of the commission of conjoint robbery, as robbery in either the first or second degree is necessarily included in the commission of a conjoint robbery, and, where the evidence on the part of the state clearly establishes all the essential elements of robbery in the first degree against the defendant on trial, he may be prosecuted and convicted of that included offense; such conviction being a bar to any subsequent prosecution for robbery conjointly committed in the same transaction.”

Defendants having requested the court to instruct the jury upon conjoint robbery and such crime being included in the offense charged in the information, there is no merit to their contention.

Defendants’ counsel argues in his brief that Hattie Miller is entitled to' have the case dismissed against her, because of duress arising out of the fact that the crime was committed, if at all, by her in the presence and under the direction of her husband.

Sections 1515 and 1518, C. O. S., provide:

“The duress which excuses a person from punishment who has committed a prohibited act or omission must be an actual compulsion by use of force or fear.”
“The inference of subjection arising from the fact of coverture may be rebutted by any facts showing that in committing the act charged the wife acted freely.”

Defendant Bill Miller claimed to have won the money and watch shooting craps. Defendant Hattie Miller denied that she had anything at all to do with obtaining the watch or money. .She introduced no evidence of duress, and failed to raise the question by objection, by motion in arrest of judgment or by motion for a new trial in the lower court, and has not raised it by petition in error in this court.

It appears from the whole record that the inference of subjection arising from coverture is rebutted by a showing that in committing the act charged the wife acted freely.

The verdict of the jury being supported by sufficient evidence and the errors of law complained of being without substantial merit, the cause is affirmed.

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


text:
    B. F. WHITMORE v. STATE.
    No. A-8303.
    April 9, 1932.
    Rehearing Denied May 7, 1932.
    (10 Pac. [2d] 291.)

      Jas. A. Embry, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Lincoln county of the crime of manslaughter in the second degree, and his punishment fixed by the jury at a fine of $500, and imprisonment in the county jail for a period of 90 days.

Defendant contends first that the verdict and judgment is not sustained by sufficient evidence, and is contrary to the law and to the court’s instructions.

The evidence of the state was that defendant, while intoxicated, drove his truck on the wrong side of the highway and struck the car of one Clay Davidson, notwithstanding the fact that Lowell Davidson, who was driving the car, drove it half way off the pavement on his side of the road in an attempt to avoid being struck by defendant’s car. Lowell Davidson was killed as a result of his car being struck by the one driven by defendant.

Instead of the evidence of the state being, insufficient to support the verdict of the jury, it was ample to justify a verdict of murder. Drunken driving can never be stopped until jurors do tbeir full duty under the law and the evidence. The degree of guilt found in this case and the punishment fixed by the jury outrages public justice, and is an invitation to drunken drivers to continue their unlawful course at the expense of human life.

Defendant next complains that the court erred in its instructions to the jury. There is no merit in this contention.

Defendant next contends that the court erred in overruling his motion for a new trial. This contention is equally without merit.

For the reasons stated, the cause is affirmed.

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


text:
    FRANK TERRY v. STATE.
    No. A-8201.
    April 9, 1932.
    (10 Pac. [2d] 290.)
    J. R. Hannah and Phillips & Boner, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

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

The defendant in his petition in error alleges numerous errors, but argues only that the evidence is insufficient to support the verdict of he jury.

The evidence of the state was that William Grover Essex was employed by J. F. Burchett as cook for a threshing crew; that defendant knew that Essex was to be paid off on the day when the crime was alleged to have been committed; that defendant came to' the cook shack and said, “Cook, you are going to have a pretty good payroll the first aren’t you?” and Essex said “Yes, something better than $50 if I don’t draw too much between now and then”; that defendant came to Burchett’s place on the day the crime was committed and said to Essex, “Cook, are you going to Durant today?” and cook said, “I was going with this fellow here,” and defendant said, “You can go with me and it won’t cost you anything”; that Essex received a check for $58.75 and left with defendant, as he supposed, for Durant; that defendant was accompanied by Clarence Browning; that defendant drove his car down in a hollow and said he was going over the hill to get some liquor, and returned with a gallon of whisky; that on his return he suggested that they play poker; that Essex won three or four dollars from defendant and Browning, which was all they had, and that broke up the game; that instead of going to Durant, defendant drove to Milburn and there introduced Essex to a storekeeper who cashed his check, giving him five ten dollar bills, a five dollar bill, and four ones, and that Essex gave back 25 cents in change to- make the amount $58.75; that they got in defendant’s car and Shorty Howard came up to the side of the car and asked Essex if he had any money and he said, “Yes”; that defendant left word with J. A. Browning, a brother of Clarence Browning, that Essex had his money and for him to follow them; that they stopped at the side of the road and defendant sought to get Essex into a poker game; that Essex refused to put any money in the poker game, because none of the other parties had any; that Essex said he did not believe the old man gave him the right amount of money when he cashed the check; that defendant said, “Well, get it out and count it and if he did not give you the right change, I will make him do it”; that as Essex counted the bills, J. A. Browning stepped up and jerked them out of his hand, and told him he was an officer and would take him to Durant; that immediately defendant called Browning off to one side to have a talk with him, and after they came back he called him off the second time; that defendant and Clarence Browning then lit out; that J. A. Browning, Terry, and Essex got into Browning’s car and started toward Durant; that they met the sheriff, and Browning said, “I have got a man I caught violating the liquor law,” and the sheriff said, “When did you begin to enforce the law?” That immediately Essex spoke up and said, “They have robbed me of |59”; that Browning said, “Search me,” and that the sheriff searched him and found only two pennies on him; that the county attorney was sitting in the sheriff’s car and saw Browning drop something in the weeds, and called the sheriff’s attention to it; that the sheriff picked it up and Essex, by describing the number and denomination of the bills, identified the money in such a way that the county attorney turned it over to him; that Browning then said he had won the money from Essex playing poker; that while the sheriff was talking to these parties, defendant and Clarence Browning came up in the car; that the sheriff took defendant to one side and questioned him, and defendant said, “I don’t know anything about that bunch at all”; that he had started home and knew nothing about the deal at all, and that they had not played any poker; that in the presence of defendant and the other parties, Essex told the same story he told on the witness stand in the trial.

Defendant, testifying for himself, said that he went to Burchett’s place to arrange for him to' thresh for him, but Burchett testified that defendant said nothing to him that morning about threshing; that he saw Browning grab the money out of Essex’s hand, but did not have anything to do with the taking of it; that when defendant left home Clint Terry and J. A. Browning were chopping cotton for him.

It appears from this evidence that defendant knew Essex was going to be paid off, went there to get him, and arranged for these other parties to follow for the purpose of getting the money away from Essex either by getting him drunk and taking it in a poker game, or taking it by force; that failure to get him either drunk or into- a poker game, with any chance of winning his money, Browning, the man with whom defendant had arranged to follow them, arrived at the opportune time and took the money away from Essex.

This evidence was sufficient to justify the jury in finding the defendant guilty.

For the reasons stated, the cause is affirmed.

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


text:
    EOY LOVINS v. STATE.
    No. A-8279.
    April 9, 1932.
    (10 Pac. [2d] 289.)
    Darnell & LaEue, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, Eoy Lovins, hereinafter referred to> as the defendant, was jointly informed against with Jerry Sharum and Bert Onley, charged with the crime of burglary; was tried separately, convicted of burglary in the second degree, and sentenced to serve a term of two years in the penitentiary.

The testimony on behalf of the state is, in substance, as follows: Bert Onley, one of the defendants charged in the information, testified that on the 24th day of February, 1929, he, in company with Eoy Lovins, Vernie Sharum, and Jerry Sharum, broke into the F & M Milling Company, of Clinton, Custer county, Okla., in the nighttime and took therefrom a quantify of flour and other products belonging to the milling company.

The state further shows by Mrs. Emily Grant, who was at the time of the burglary the wife of Bert Onley, that the boys were at her home, and she stood at a window and watched them go to the mill, and that later some of the flour was brought to her home by the different parties.

The defendant offered testimony tending to show that at the time of the burglary he was at home suffering from a broken jaw, and was not at the Onley home and did not take any part in the burglary, and offered testimony tending to establish an alibi.

The conflict in the testimony, under proper instructions of the court, was submitted to the jury, and the jury found the defendant guilty and assessed his punishment at imprisonment in the penitentiary for two years.

The only question argued by the defendant in his brief is the question that the testimony of Bert Onley, who was an admitted accomplice, is not sufficiently corroborated. The defendant insists that Emily Grant, who- was Emily Onley at the time of the trial, was an accomplice, and therefore her testimony could not corroborate the testimony of Bert Onley. With this contention we cannot agree.

The testimony of Mrs. Grant shows she was the wife of Bert Onley at the time of the burglary; that, during the day prior to the night the burglary was committed, the defendant and others were back and forth to her home; there is no testimony showing Mrs. Grant encouraged, aided, or abetted the defendant. and others in committing the burglary. Her testimony shows she stood in her home and watched the defendant and others go to the mill; that later some flour taken from the mill was brought to her home. The fact that Mrs. Grant knew the burglary was being committed, stood and watched the parties go to the mill, and said, nothing about it at the time, is not sufficient to make her an accomplice.

The testimony in this case is sufficient to sustain the judgment. There are no errors in the record sufficient to warrant a reversal.

The judgment is affirmed.

EDWARDS and CHAPPELL, JJ., concur.


text:
    WILLIE KERNELL v. STATE.
    No. A-8204.
    April 9, 1932.
    (10 Pac. [2d] 287.)
    R. S. Howe, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Choctaw county of robbery with firearms and was sentenced to serve a term of 5 years i nthe state penitentiary.

There is no substantial conflict in the testimony. At the time charged, defendant, with - another young man named Hart, drove to a filling station at Hugo conducted by one Warren and had Warren put five gallons of gasoline in a car. Defendant and Hart remained at the filling station for some minutes and Warren demanded payment for the gas; defendant pretending to get a bill from his pocket to pay for the gas started the car and began to drive away. Warren jumped on the car and scuffled with defendant and continued to' demand pay for the gas. Hart drew a pistol and attempted to make Warren get off the car, in which he was encouraged by defendant. Warren continued the scuffle, which resulted in running the car into a ditch. Hart testifying as a witness denied he drew a pistol; also' there was some evidence that Warren had made a statement he did not see a pistol at the time of the alleged robbery.

Defendant is charged with robbery with firearms, as defined by section 1784, Comp. St. 1921, as amended by chapter 85, § 1, Session Laws 1923, and as further amended by chapter 44, § 1, Session Laws 1925; the charging part of the information is :

“* * * Did * * * commit the crime of robbery with firearms, in the manner and form as follows to wit: That he the said Willie Kernell did then and there willfully, wrongfully, unlawfully and feloniously make an assault in and upon one John Warren with a certain pistol, then and there and thereby putting the said John Warren in fear of immediate injury to his life and person, and did then and there willfully, wrongfully, unlawfully and feloniously take, steal and carry away from the person and in the possession of the said John Warren, certain personal property, to wit: Five gallons of gasoline, without said owner’s consent and against his will, with the wrongful, unlawful and felonious intent on the part of him the said Willie Kernell to deprive the owner thereof, and to appropriate the same to' his own use and benefit and contrary to the statute. * * *”

It is contended that the evidence does not prove a robbery with firearms; that the gas was sold in the usual course of trade and the original taking was not unlawful. That there is no allegation of retaining by force, and that the retaining, by force is not an element of the crime of robbery with firearms, and that in any event such force as was used was an attempt to escape.

Robbery is defined by section 1784, Comp. St. 1921, and is divided into first and second degrees by section 1790, Comp. Stat. 1921. Section 1 of chapter 85, Session Laws 1923, as amended by section 1, chapter 44, Session Laws 1925, classifies a certain form of this crime as robbery with firearms and provides a different punishment ranging from a term of 5 years in the state penitentiary to death.

Section 1785, Comp. St. 1921, provides:

“To constitute robbery, the force or fear must be employed either to obtain or retain possession of the property, or to prevent or overcome resistance to the taking. If employed merely as a means of escape, it does not constitute robbery.”

These various provisions of the statute have had the consideration of the courts in numerous decisions. In several of the following cases the distinction between robbery and larceny has been drawn; Slover v. Territory, 5 Okla. 511, 49 Pac. 1009; Monagham v. State, 10 Okla. Cr. 89, 134 Pac. 77, 46 L. R. A. (N. S.) 1149; Nelson v. State, 11 Okla. Cr. 259, 145 Pac. 315; Hill v. State, 19 Okla. Cr. 406, 200 Pac. 253; Randall v. State, 33 Okla. Cr. 262, 243 Pac. 983; Ward v. State, 34 Okla. Cr. 296, 246 Pac. 664; Kelley v. State, 47 Okla. Cr. 1, 288 Pac. 1001; Roberts v. State, 49 Okla. Cr. 181, 292 Pac. 1043.

The line of distinction between offenses is often very close. A criminal act may in some cases constitute different offenses leaving an election to the state as to which offense will be charged. The demarcation between a robbery and a larceny from the person is very narrow. 23 R. C. L. 1139, in touching upon the distinction, says:

“The lack of consent, the force and violence used, or the putting in fear of the person robbed, distinguish the offense of robbery from extortion, obtaining goods under false pretense, and larceny. The distinction, however, between larceny and robbery is a nice one. The criterion which distinguishes these offenses is the violence which precedes the taking. There can be no' robbery without violence, and there can be no larceny with it. It is the violence that makes robbery an offense of greater atrocity than larceny. Robbery may thus be said to be compound larceny composed of the crime of larceny from the person with the aggravation of force, actual or constructive, used in the taking.”

Applying the provision of our statute, section 1785, supra,, the foregoing quotation would have the added words “or the retaining thereof” as the concluding part. See, also, Nelson v. State, supra; 1 Whar. Crim. Law, 854.

The distinction is discussed in numerous illustrative cases cited in the notes 54 C. J. 1016, par. 24 f. The obtaining of the gasoline having been without force, but with the consent of the owner, the state of facts shown could only constitute robbery in ease the resistance offered by defendant and his companion was to retain possession of the property and not as a means of escape. The prosecuting witness was not attempting to recover his property, but was demanding pay for it. The circumstances disclose that defendant and his companion were attempting to flee. Under no reasonable view of the evidence can it be said that defendant used force to retain possession of the property, but rather it discloses that such force as was used was in an effort to escape. We are constrained to hold that the crime charged has not been proven.

The case is reversed.

DAVENPORT, P. J., and CHAPPELL, J., concur.


text:
    ELMER PLEMONS v. STATE.
    No. A-8282.
    April 9, 1932.
    (10 Pac. [2d] 285.)
    P. L. Welch, for plaintiff in error.
    J. Berry King, Atty. Gen., and Geo. J. Fagin, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Push-mataha county of the crime of attempted robbery with firearms, and his punishment fixed by the jury at imprisonment in the state penitentiary for a period of ten years.

The evidence of the state was that defendant, Crockett Carlton, “Red” Bargsley, and “Slim” went together to the town of Tuskahoma for the purpose of robbing the bank in that town; that the parties came to Carlton’s home on Thursday; that they stayed Thursday night between Haileyville and Hartshorne, at a tourist park; that they had a camp in the woods near Carlton’s home, and stayed there Friday night and Saturday; that Carlton and Bargsley went to Sasakwa and got a tank of air to be used in cutting the safe, and brought it back with them and took it to Tuskahoma when they went to rob the bank; that all the parties left the camp in the woods and went to Tuskahoma for the purpose of robbing the bank ; that Plemons had a .41 caliber pistol; that Bargsley had a revolver and a Winchester rifle and the others had pistols; that two' of them were in a Dodge coupe and the other two in a Dodge Senior Six, belonging to defendant; that they drove to Tuskahoma about 3 o'clock at night, stopping one car near a garage close to the bank and the other car by the bank; that Bargsley stayed in one of the cars and the other three got out and went up to a window of the bank; that Yerdie Hicks and Jim Payne were night watchmen in the town of Tuskahoma, guarding the bank and the business institutions of the town; that they noticed the two cars pull up to the bank, and saw some men go to the bank window and begin to fool with it; that they separated, one of them going toward the bank from one side, and the other toward the bank from the other side; that, when Payne got near the garage where one of the cars was parked, he heard somebody say, “All right, stick ’em up big boy, stick ’em up,” and then shoot; that something like 20 shots were fired by the officers and the men attempting the robbery; that Crockett went np on the hill; that about that time he heard Bargsley tell somebody to “stick ’em up”; that a number of shots were fired, one of which struck Bargsley; that Bargsley was found dead the next day, in his car, several miles from the scene of the attempted robbery; that the hindsight off a rifle and a .45 automatic pistol were found near the bank; that considerable blood was found on the ground where the pistol was found; that a piece of shirt found near the bank corresponded with a tom-out place in the shirt worn by Bargsley when he was found dead in his car; that defendant appeared at the home of Bargsley on Sunday following the attempted robbery on Saturday night and inquired for Bargsley; that he was pale and very much agitated, and told Mrs. Bargsley that he and Bargsley and the others had attempted to rob the bank at Tuska-homa, and that there had been some shooting.

The defense was an alibi, but admissions made by defendant greatly Aveakened his testimony.

Defendant first contends that the court erred in overruling his demurrer to the evidence of the state, and that court further erred in denying his requested instruction that the jury be advised to find him not guilty.

In Teague v. State, 13 Okla. 270, 163 Pac. 954, this court said:

“Where there is any competent evidence, reasonably tending to sustain the allegations of the information, the court should not sustain a demurrer to the evidence.”

In Baker v. State, 9 Okla. Cr. 47, 130 Pac. 524, 525, this court said:

“Trial courts in Oklahoma are limited in. their poAver to interfere with the determination of issues of fact; and, where there are any facts from which the jury can legitimately deduct either of two conclusions, a motion to advise a verdict should always be denied, and the question of fact properly submitted under instructions given.”

Under the facts as disclosed by this record, it was not error for the court tO' overrule the defendant’s demurrer and deny the requested instruction.

It is next contended that there is no corroboration of the witness, Carlton, whn was an accomplice.

It appears from the record that on Thursday before the attempted robbery Bargsley, defendant, and another man unknown to him came to the home of S. L. Bargsley, a brother of the man killed; that they were driving two Dodge cars similar to those used in the attempted robbery, and that they left his place together; that Bargsley was found dead, the next day, in his Dodge car; that a piece of his shirt, the hindsight from his rifle, and a .45 caliber automatic pistol were found at the scene of the attempted robbery; that the parties were driving the Dodge cars. Carlton is further corroborated by Mrs. Bargsley, who testifies that defendant appeared at her home on Sunday and told her about the robbery and the shooting; that defendant was frequently at her home prior to the date of the attempted robbery; that defendant was an associate of her husband; that her husband, defendant, and one Jack Clampy (sometimes called “Slim”) left their home on Wednesday before the attempted robbery, driving separate cars; that they all went away in the same direction ; that her husband o wned a high-power Winchester rifle and a small gun; that he took the small gun with him, but that the rifle had been left down at Carlton’s.

The law prescribes no standard for the strength of corroborating evidence, and there is a failure to corroborate only if there is no evidence legitimately having that effect. Davenport v. State, 20 Okla. Cr. 279, 202 Pac. 18; Hendrix v. State, 22 Okla. Cr. 230, 210 Pac. 734; Wertzberger v. State; 25 Okla. Cr. 1, 218 Pac. 721; Underwood v. State, 36 Okla. Cr. 21, 251 Pac. 507.

There is no merit in the contention that the accomplice is not sufficiently corroborated.

Defendant next contends that the court erred in giving instructions Nos. 3 and 9. His counsel admits that the instructions complained of are correct statements of the law, but the complaint against them and the ground on which they are attacked is that the facts as shown by all the evidence in the case, did not warrant the submitting of such law by the court to the jury, and that the giving of such instructions by the court was in violation of the fundamental rights of defendant.

No objections or exceptions were saved to any of the instructions given by the court, and no additional or different instructions requested. Where no objections are made, nor exceptions taken to' the instructions, and where no additional or different instructions are requested, this court will only examine the instructions for fundamental errors. Boutcher v. State, 4 Okla. Cr. 576, 111 Pac 1006; Birdwell v. United States, 10 Okla. Cr. 159, 135 Pac. 445; Russell v. State, 17 Okla. Cr. 164, 194 Pac. 242.

The instructions not being fundamentally erroneous, there is no merit in the contention.

A careful examination of the record discloses that defendant had a fair trial and that the evidence supports the verdict of the jury.

For the reasons stated, the cause is affirmed.

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


text:
    GENE ELMS v. STATE.
    No. A-8288.
    April 16, 1932.
    (10 Pac. [2d] 728.)
    Tom Williams, Glenn Williams, and C. E. Allen, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Tulsa county of murder and sentenced to life imprisonment in the state penitentiary.

The record discloses that just prior to the time of the homicide a burglary of a mercantile establishment had been committed at Gentry, Ark., and property stolen. The police officers at Tulsa had been advised of this burglary, and defendant was suspected of having committed it. About dark, on the evening of the homicide, two plain •clothes police officers, James Wooley and one Walkley, went to the residence of a relative of defendant in West Tulsa and learned that defendant, with a companion by the. name of Hodges, had gone a few blocks away to one Johnson’s. The officers then went to Johnson’s residence where defendant was seated in a car. He had just been attempting to sell some of the stolen property to' Johnson. Hodges was out of the car. Wooley and Walkley got out of their car, asked some questions of Johnson, and defendant turned on his lights and started to back his car. Wooley and Walkley advanced on the car, and an exchange of some eight shots took place; three of them fired by defendant through the windshield of his car. One shot struck Wooley, resulting in his death. Defendant escaped and was apprehended at ,St. Paul, Minn. The testimony for the state is that defendant fired on the officers first and they did not fire until Wooley had been hit. Defendant contends he did not know that Wooley and Walk-ley were officers, but that they fired at him first and he returned the shots in self-defense. Except on this point, there is no- material conflict. Defendant, 23 years of iige, had twice been convicted of a felony, once in Arkansas and once in Missouri.

The first contention is that the evidence does not sustain the judgment. It is not necessary to discuss this claim, since there is ample testimony that defendant fired at the officers as they approached the car, and that the fatal wound was inflicted before the officers returned the fire. This question of fact was for the jury who saw and heard the witnesses and evidently believed the testimony of the state. This court has said many times it will not reverse a case on the weight of the evidence, where there is competent evidence from which the jury may reasonably and logically arrive at a verdict of guilty.

Complaint is next made that the trial court erred in giving certain oral instructions and in reading the statutes to the jury in answering its request for additional information. Upon this point it appears that, after the case had been submitted to the jury, and it had deliberated for some time, the jury came into' court and said it had not arrived at a verdict and wished to' ask the court a question, to which neither counsel for the state nor defendant objected. The foreman then asked two questions. The first, in substance, What the maximum punishment would be if the jury should find defendant guilty of manslaughter, and if defendant would be subject to parole and be allowed bail. The second question, Would defendant be subject to parole and to bail, if found guilty of murder and life imprisonment given? The county attorney objected and the court inquired of defendant’s counsel and Mr. Glenn Williams, counsel for defendant, said:

“* * * I don’t know whether we would object or not but I believe that legally the court would be without authority to give any further instructions. We do' not care to object at this time but I do not believe it would be within the province of the court. * * *”

The court then stated to the jury, in substance, that these were matters upon which the court should not instruct and called their attention to a certain instruction as to' the punishment. The foreman asked if they might have the statute, and the court answered, in substance, that the instructions were in conformity with the statute. Later on, the jury again came into court and stated they were unable to arrive at a verdict. The court then, in substance, asked if there was any assistance he could render, and was informed by some member of the jury, if he could answer the questions asked, it would help them. The foreman then stated that they understood the matter of punishment. The court then mentioned the matter of parole and the right to bail, and stated he could answer if counsel agreed. Defendant’s counsel said they would not agree. The county attorney said he was willing. Then defendant’s counsel stated, if the state was willing, they were. The court asked him if this was correct, and he stated it was. The court then proceeded to answer the jury’s questions, stating, in substance, that, if the punishment be anything less than life imprisonment, defendant would be entitled to bail; that in case of any judgment of imprisonment the court might parole the defendant at the time of sentence, or the Governor might parole after judgment. In this the court was very much in error. The court was wholly without power to parole in this case. Section 2803, Comp. Stat. 1921. The statement as to the power of the Governor was correct. Upon the statement of the court, the county attorney called his attention to the error, and the answer was finally corrected. Defendant’s counsel took some part in the conversation and made no objections. Later in the day the jury came in and informed the court they had arrived at a verdict. Defendant’s counsel then objected, saying-

“Comes now the defendant by his attorneys and objects to the receiving of the verdict in this cause for the reason that the jury has received information and opinions of law that were unauthorized and for the reason that at noon of this day the jury came in with certain questions written out that they desired to have answered by the court. * * * At that time the county attorney of Tulsa county objected to giving of information by the court and defendant’s counsel stated that they did not believe it was— Mr. Glenn Williams: They did not care to object. Mr. Tom Williams: They did not believe it was authorized by law and it was not in accordance with law, but did not care to object. Later in the evening, perhaps half past five, the jury again returned with the same questions and ivas asked by the court if they had arrived at a verdict, which they said they had not. They were then asked by the court if the court could assist them. The foreman of the jury responded that the court had failed us. The court then said that he could answer the questions if there was no objection. At that moment the county attorney of Tulsa county promptly stated that he had no objections and the defendant’s attorneys were placed in a position of apparently not being willing. * * * The defendant’s attorneys upon Mr. Coffey’s giving consent were forced to, in their minds to also give their consent. * * *”

Some further conversation occurred, and the court explained his action and said, in substance, he had not yet received the verdict; that he might have been in error in some of his answers to the jury; that, if counsel thought his answer had been harmful, he would correct the matter then and correctly inform the jury and send them out. Defendant’s counsel then said:

“Mr. Tom Williams: No, that is the reason we are objecting at this time, your honor. We put in this record that we consented, we had no objections, but we say we have no right to consent to those things to happen. * * * Your honor, the fact is, we feel that the defendant’s rights have been jeopardized by the whole matter and we are not backing up on anything that we did. We have in this record that we consented at that time. The Court: Yes. Mi*. Tom Williams: But we say in here that the attorneys cannot waive and consent to anything that would injure the defendant’s case in a murder trial, and it is our duty to file this motion and ask that it be passed upon and that a mistrial be declared.
“The Court: Well now, gentlemen, I am not going to do that. If you want me to — if you want me to resubmit the question, to give them a different — to look my answer on the matter of parole, and let the jury go back and consider it, I might do that. That is all I am going to do. * * *”

No exception was taken to this statement of the court who thereupon read to the jury sections 2803 and 2804, Oomp. Stat. 1921, and again sent them out. Defendant’s counsel objected as follows:

“Mr. Tom Williams: The defendant objects and excepts to the oral statement to the jury made by the court, and the reading of the statute to the jury at this time.”

When the jury returned, defendant’s counsel again objected to receiving the verdict.

We disapprove the giving of instructions or explanations or the answering of questions which amount to an instruction in felony cases except in writing. The statute directs that instructions be in writing, and this should be observed. Section 2687, Comp. Stat. 1921. Though the statute requires instructions to be in writing, written instructions may be waived by consent or by failing to except to an oral charge when given. Rea v. State, 3 Okla. Cr. 281, 105 Pac. 386, 106 Pac. 982; Bird v. State, 22 Okla. Cr. 263, 210 Pac. 925; Childs v. State, 24 Okla. Cr. 142, 216 Pac. 487; Milam v. State, 24 Okla. Cr. 247, 218 Pac. 168.

Counsel may not give consent that the court answer a question of the jury, amounting to an instruction, and then have the verdict rejected because the court did answer the question. When the jury came in with its verdict, and it was brought to the attention of the court that there was error in his oral answer to the question of the jury, it was the duty of the court to correct such error and to allow the jury to' reconsider its verdict. 16 C. J. 1055, § 2496, N. 10, 11.

Upon a consideration of the whole case, we are satisfied defendant had a fair trial; that his guilt has been clearly established, and such errors as appear in the record are not materially prejudicial.

The case is affirmed.

DAVENPORT, P. J., and CHAPPELL, J., concur.


text:
    ROY BATES v. STATE.
    No. A-8307.
    April 16, 1932.
    (10 Pac. [2d] 732.)
    Wm. T. Powell and Lon Morris & Son, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted for a second violation of the prohibition laws, and sentenced to pay a fine of $100, and to be imprisoned in the county jail for a term of six months.

The state called R. J. Smith, E. E. Smith, and other witnesses Avho testified that on the 9th day of November, 1930, they went to the home of Roy Bates, and went into the house, and E. E. Smith bought two pints of whisky from Boy Bates, paying him $3. On redirect examination, the witness B. J. .Smith was asked the following questions, and gave the following answers:

“Q. Mr. Smith, I now hand you what has been marked as state exhibits one and two, and ask you to state what the exhibits are, please? A. Liquor that we purchased from Boy Bates on the 9th day of November, 1930, in Cotton County, Oklahoma. Q. Is this the whisky you purchased from him between 10:30 and eleven o’clock, and for which your son, E. E. Smith, paid $3.00? A. Yes, sir.”

The defendant testifying in his own behalf denied he sold these parties any whisky, and called F. D. Allen, who testified he bought the whisky from a fellow who was in the Bates home at the time, and that the defendant did not sell whisky to the witnesses who had testified for the state. He denied that he sold any whisky.

The record shows that B. J. Smith and E. E. Smith had been hired by the sheriff to work in the county to detect men who were violating the prohibition law; that they had been going from county to county; and had been specially hired by the officer to detect and entrap parties violating the prohibition laws.

In this case there is a sharp conflict in the testimony. The testimony on behalf of the state is sufficient to sustain the verdict of the jury.

The defendant has assigned several errors alleged to have been committed, but in his brief only two are argued, the first being that the trial judge erred in not permitting him to cross-examine the state’s paid informers, with the view of impeaching them before the jury; second, the defendant’s demurrer to the evidence and motion for a direeted verdict should have been sustained, for the reason that the state failed to prove venue in this case.

From an examination of the record, the first error complained of is without merit. The court properly restricted the cross-examination to the facts brought out by the state. The second error complained of is not borne out by the record, as the testimony clearly shows that one of the prosecuting witnesses stated that the whisky was ■bought from the defendant in Cotton county, state of Oklahoma.

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

EDWARDS and CHAPPELL, JJ., concur.