author: DOYLE, J.

text:
    HERMAN ALLEN v. STATE.
    No. A-9947.
    March 18, 1942.
    (124 P. 2d 262.)
    Robt. W. Hoyland, of Guthrie, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case charged the defendant, Herman Allen, with having on the 23rd day of December, 1939, in Logan county, possession of one gallon of whisky, with the unlawful intent then and there to sell the same. Upon his trial the jury found him guilty, and assessed his punishment at confinement for 30 days in the county jail and a fine of $50. Motion for a new trial was duly filed and overruled, and on June 15, 1940, the court rendered judgment and sentenced the defendant in accordance with the verdict of the jury.

On October 12, 1940, a petition in error with case-made was filed in this court.

The only assignments of error argued are that the court erred in overruling the defendant’s motion to suppress the evidence, and that the evidence is insufficient to sustain the conviction.

When the case was called for trial the defendant filed a motion to suppress the evidence on substantially the following grounds :

First: That the evidence was obtained unlawfully by the officers making an unlawful search of the defendant’s residence without his consent and over his objections.

Second: At the time of the entry and search of defendant’s residence, the sheriff and his deputies were not armed with a valid search warrant.

Third: That said officers failed and refused to serve upon said defendant a copy of the search warrant at the time of the search.

The defendant Herman Allen in support of the motion to suppress testified that on the 23rd day of December, 1939, at the time the raid was made, no warrant was presented to him, and that the same was served upon him three days later while he was in the county jail.

On cross-examination the defendant admitted that he was convicted in Logan county on the 22nd of May, 1939, of unlawful possession of intoxicating liquor. See Allen v. State, 72 Okla. 102, 113 P. 2d 835.

To support his contention that a copy of the warrant was not presented to him, the defendant called three or four witnesses who testified that they were present at the time of the raid, and that they did not see a copy of the warrant delivered to the defendant.

Contradicting this negative testimony of the witnesses for the defendant, two officers testified positively that at the time of the search two attempts were made to serve the warrant on the defendant, but that he refused to take it, and the officers finally laid it down on the table in the kitchen.

It is also strenuously insisted by the defendant that the return on the search warrant shows on its face that the same was not served on the defendant until the 26th day of December, 1939, while he was in jail.

The defendant offered the officer’s return on the search warrant as an exhibit, as follows:

“This search warrant came to my hands on the 23rd day of Dec — 1939, and on the 23rd day of Dec — 1939, I served the same as follows: I proceeded to the place described in the within warrant, and there seized 1 Gallon & corn whisky — and now have the said property in my possession awaiting the further order of the Court, I found Herman Allen in possession of said property and now have his body before the court.
“I served a copy of the within warrant on Herman Allen
“This 26th day of Dec — 1939.
“Glen Farquharson, Sheriff
“By W. T. Smith, Deputy.”

This return shows that the search warrant was served on the 23rd day of December, 1939, the day it issued, and that the return was made on the 26th day of December, 1939.

It is the settled rule that in a prosecution for illegal possession of intoxicating liquor, the burden of proving the invalidity of the search is on the defendant.

In the instant case it is sufficient to say that the search warrant was properly served on the defendant at the time of the search and seizure. Therefore, the court did not err in overruling the defendant’s motion to suppress the evidence.

On the trial the sheriff, undersheriff and two' deputies testified that with a search warrant they proceeded to the home of defendant, at 816 West Cleveland in the city of Guthrie, Logan county, on the 23rd day of December, 1939, and upon arriving there they found the front and back doors locked; that they knocked on the front door and waited a little while and announced that it was the sheriff, and they knocked again, and after waiting about two or three minutes they forced an entrance. That upon entering the house two of the deputies went to the kitchen and there found a two gallon jug of whisky turned over in a slop pail, and that there was a little over a gallon of whisky left in the jug; the defendant was present and a deputy sheriff tried to serve the warrant on him twice, the defendant refused to accept the same, and the deputy finally laid it on a table in the kitchen; that there were six or seven men in the house at the time.

At the close of the evidence for the state the defendant moved the court to instruct the jury to return a verdict of not guilty, for the reason that the state had failed to prove facts sufficient to justify a verdict of guilty or to legally support the allegations contained in the information. Which motion was overruled, exceptions allowed.

Upon the trial the defendant did not testify and no witness was called on the part of the defense.

Upon the record before us, it appears that the verdict of the jury is fully sustained by the evidence. The trial was in all respects fair, and we are unable, after a careful examination of the record, to find anything in the record to warrant us in interfering with the verdict and judgment of conviction.

The judgment appealed from is accordingly affirmed.

BAREFOOT, P. J., and JONES, J., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    BUSTER JARRETT v. STATE.
    No. A-9834.
    March 25, 1942.
    (124 P. 2d 267.)
    Buster Jarrett, in pro. per.
    Mac Q. Williamson, Atty. Gen., for the State.
   PER CURIAM.

The defendant, Buster Jarrett, was presumably tried and convicted in the district court of Osage county. After his conviction, he wrote a letter to the clerk of this court on April 4, 1940, asking that he be allowed to file his case-made without costs, and that he be furnished a case-made at the expense of Osage county. Upon receipt of this letter the clerk was directed by the presiding judge to file the same. The only further action taken was the writing of a letter by defendant, who is now confined in the State Penitentiary at Mc-Alester, on October 9, 1940, enclosing a copy of a letter from Judge James T. Shipman, district judge. This letter is as follows:

“Bartlesville, Oklahoma
“May 21, 1940.
“Mr. Buster Jarrett, #14022,
“State Penitentiary,
“McAlester, Oklahoma.
“Dear Sir:
“No motion for new trial was filed in your case, no notice of appeal was given at the time, no exceptions were saved to the judgment and sentence of the court, no one was here to present your ‘Notarized Pauper’s Oath.’ For these reasons, the court did not think it wise to have case made prepared and charged to the county, inasmuch as it could not be used in effective appeal.
“Yours truly,
“(Signed) James T. Shipman,
“District Judge.”

No further action has been taken in this case. There is no record in this court to show in what county defendant was convicted, or with what crime he was charged. No application has been made to this court other than the letter above described. Under these facts there is nothing for this court to do but to dismiss the attempted appeal, and it is so ordered.


author: BAREFOOT, P. J.

text:
    BEA CLAPP v. STATE.
    No. A-9896.
    March 25, 1942.
    (124 P. 2d 267.)
    For former opinion of affirmance, see 73 Okla. Cr. 261, 120 P. 2d 381.

      Jesse J. Worten and C. K. Templeton, both of Paw-huska, for defendant.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Sim T. Carman, Co. Atty., of Paw-hnska, for the State.
   BAREFOOT, P. J.

This case was affirmed in a decision rendered on December 10, 1941, and reported at 73 Okla. Cr. 261, 120 P. 2d 381. A rehearing was granted and both the state and defendant have filed briefs in support of their contentions. We have again carefully examined the record and the authorities in the briefs and have come to the conclusion that justice demands a reversal and remanding of this case for a new trial.

It is contended by the defendant that the error of the court in permitting the witnesses Dr. R. O. Smith and Thelma Reeves^, the nurse, tc testify, they being incompetent witnesses as was held in the original opinion, Avas a violation of a statutory right and for this reason defendant was entitled to a new trial as a matter of law. We do not now uphold this contention as a matter of laAV, but after a careful consideration of the facts in the instant case have come to the conclusion that the permitting of these two witnesses to testify, and taking into consideration the character of their testimony as applied to the facts herein, was prejudicial to the rights of the defendant, and that, by reason of the permitting of these witnesses to testify, defendant is entitled to a new trial, not because he is absolutely entitled to it as a matter of law, but because the facts in the instant case demand it. The true rule followed by this court is announced in the case of Anderson v. State, 8 Okla. Cr. 90, 126 P. 840, Ann. Cas. 1914C, 314, in subdivision (b) of paragraph 1 of the syllabus, where it is said:

“(b) The Criminal Court of Appeals never presumes error in the proceedings of a court of record. Two things must be shown by an appellant in a criminal case before a conviction will be reversed, viz., that error was committed during the trial, and that this error, unless jurisdictional, deprived the appellant of some substantial right to his material injury.”

It will be noted that the last words of the quotation are “to his material injury”, and that is what we are holding in this case; that the permitting of the witnesses Dr. R .0. Smith and Thelma Reeves, the nurse, to testify, they being incompetent witnesses, was a “material injury” in view of all the facts in this case.

We realize that the retrial of a criminal case is an additional expense to the county, and while it is true that a reversal is not always had because of the permitting of an incompetent witness to testify, and especially is this true under the harmless error doctrine, but after a consideration of all the facts in this case we have come to the conclusion that the same should be reversed and remanded for a new trial. It is unnecessary to state the facts here, as they appear in the original opinion.

In this connection we desire to call attention to the case of Watson v. State, 26 Okla. Cr. 377, 224 P. 368. In this case it is held that the granting of a new trial on the motion of a defendant in a criminal case places the party accused in the same position as if no trial had been had. Upon such new trial defendant may be tried and convicted of any offense embraced within the information, though of a higher grade than that of which he was found guilty at the first trial. The defendant, when a new trial is granted on his own motion, waives his constitutional right to interpose the plea of having been once put in jeopardy. See, also, State v. Behimer, 20 Ohio St. 572; Commonwealth v. Arnold, 83 Ky. 1, 4 Am. St. Rep. 114; People v. Wheeler, 79 App. Div. 396, 79 N.Y.S. 454; People v. Palmer, 109 N. Y. 413, 17 N. E. 213, 4 Am. St. Rep. 477; Oklahoma Statutes 1931, sec. 3119, O. S. A. and O. S. 1941, Title 22, § 951.

For the reasons above stated, the judgment and sentence of Osage county is reversed and remanded for new trial.

JONES and DOYLE, JJ., concur.


author: JONES, J.

text:
    Ex parte E. E. STAGGS.
    No. A-10077.
    March 25, 1942.
    (124 P. 2d 269.)

      Sid White, of Oklahoma City, for petitioner.
   JONES, J.

This is an original proceeding in habeas corpus wherein the petitioner seeks his release from confinement in the county jail of Oklahoma county.

The verified petition filed herein alleges that the petitioner was committed to' the county jail of Oklahoma county on May 20, 193S, for the nonpayment of -a fine of $50 and costs of the proceeding.

That on that date your petitioner executed a stay bond conditioned for the payment of the amount of money for which he was so held.

That if authority of law existed for the taking of said surety and release of this petitioner from confinement, the same was good and sufficient, and at all times thereafter, and even until this date, said surety was perfectly solvent and said sum could have been easily collected.

That thereafter the petitioner was frequently in and about the courthouse and has received assistance from the county officers for his dependent children.

That after the petitioner was released from jail he approached members of the sheriffs force, discussed with them his destitute condition and was advised by said officers that they did not desire or intend to imprison him further, but would look to said undertaking for the amount claimed.

That on May 26, 1941, under and by virtue of an instrument in writing styled “alias warrant”, the respondent arrested petitioner and placed him in the county jail of Oklahoma county where petitioner is now held and restrained of his liberty. That said confinement, so your petitioner is informed by respondent, is to satisfy the payment of the $50 fine and costs hereinabove set forth.

Upon the filing of this petition the rule to show cause was issued, directed to' the respondent, and it was further ordered that the petitioner be granted his freedom upon his executing bond in the amount of $100, pending the disposition of this cause.

There has been no response filed to the petition and no appearance made on behalf of said respondent in this court. In the case of Ex parte Hawkins, 70 Okla. Cr. 426, 106 P. 2d 1112., it is stated:

“Where the sheriff, who was charged in habeas corpus proceeding with unlawful restraint, neglected to. make a return to a rule to show cause why-the writ should not issue, and petition, duly verified, on its face showed that petitioner was illegally restrained of his liberty by the sheriff, and no legal cause for the restraint appeared, this court will summarily order that the petitioner be discharged.”

In the case of Ex parte Tucker, 73 Okla. Cr. 424, 122 P. 2d 174, this court stated that officers should be alert to see that no unreasonable delay is had in the carrying out of the mandates and judgments of the courts in criminal cases.

In view of the judgment of this court, stated in Ex parte Tucker, supra, and the decisions therein cited, it is our opinion that the petition for writ of habeas corpus herein states facts sufficient to show that the petitioner is entitled to the relief prayed, and, in the absence of a response, the writ of habeas corpus should issue.

From a consideration of the petition and the exhibits attached thereto, this court is of the opinion that the petitioner was illegally restrained of his liberty upon the date of the filing of said petition and should be discharged.

It is so ordered.

BAREFOOT, P. J., and DOYLE, J., concur.


author: BAEEFOOT, P. J.

text:
    In re CLYDE BURGIN.
    No. A-9971.
    March 25, 1942.
    (124 P. 2d 274.)
    Clarence Tankersley, of Shawnee, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   BAEEFOOT, P. J.

Petitioner, Clyde Bnrgin, has filed in this court an application for writ of habeas corpus, having heretofore filed his application for a writ in the district court of Pittsburg county where the same was denied.

It is alleged that the petitioner is now confined in the Oklahoma State Penitentiary at McAlester, having been committed from Lincoln county, on the '5th day of March, 1932, after entering a plea of guilty to two charges of murder.

In his petition he alleges that he was arrested and placed in jail in Lincoln county on December 31, 1931, and that on the 2d day of January, 1932, two complaints charging him with murder were filed in the county court of Lincoln county, and that he was bound over to the district court. He further alleges that he was unable to employ counsel, but that an attorney, naming him, came to the jail and informed him he had been employed by relatives to defend him. This was on the 5th day of January, 1932. He then alleges his refusal to' accept the services of the attorney and that certain statements were made to him if he would plead guilty that he would see that he did not get over four years in the penitentiary, and that after the expiration of six months, he would be able to get him a pardon. He further alleged that the sheriff and county attorney of Lincoln county made many efforts on numerous occasions to get him to plead guilty, and that he would not agree to plead guilty. That finally, on the 5th day of March, 1932, he was taken before the district judge, and that the attorney who had visited the jail to see him was present and entered a plea of guilty for him. That at no time was the county attorney or assistant county attorney present. That the information was not read to' him, nor was he advised of the charge against him, but that his plea of guilty was entered and he was given a life sentence by the court. He attaches certain certified copies of the record of the court clerk’s office of Lincoln county to his petition, to which reference will hereafter be made. He further alleges that he was about 26 years of age at the time he was sentenced, was ignorant and unfamiliar with court procedure and did not know he had received a life sen-fence in two eases until he had been confined in the penitentiary for two years, when he applied to the warden for certain privileges and was then informed of the sentence which had been rendered against him.

A response has been filed by the Attorney General on behalf of the warden of the penitentiary. This response is as follows:

“Comes now the State of Oklahoma and shows, in response to the petition filed herein, the following state of facts with reference thereto:
“That, as shown by State’s ‘Exhibit A’ which is a letter from the County Attorney, Honorable Frank Mc-Vey, of Lincoln County, setting forth the minutes in the two cases, to-wit: Case No. 2277 and No. 2276, that the petitioner herein and the defendant therein was charged in the two cases on January 12th, 1932, with murder in each case. That the complaint was filed in the County Court on January 12th and information was filed on January 15th. That on the 23rd of January the defendant was present in open court and the County Attorney present and that the defendant waived reading of the information and entered a plea of not guilty. Thereafter, on March 5th, 1932, the defendant was present in open court in his own person and by his attorney, E. A. Foster, and asked leave to withdraw his former plea of not guilty and enter a plea of guilty. That on the same day and date he did enter a plea of guilty and the judgment of the Court was entered and said judgment and sentence of the Court was that the defendant be confined in the State Penitentiary for a period of his natural life. That thereafter, on March 7th, 1932, the judgment and sentence was filed and entered with the Warden’s receipt thereto attached. This record is applicable to both cases, that is, Case No. 2277 and Case No. 2276, in the District Court of Lincoln County. That this is in conformity with certified copies of the information, the Clerk’s minutes and the judgment and sentence, hereto attached, marked ‘Exhibit B’ and made a part hereof.
“Wherefore, jour respondent alleges and states' that, putting it mildly, there are slight discrepancies between the record and the allegations of the petitioner as shown by a comparison of the petition and record herein.
“Wherefore, premises considered, it is respectfully submitted that said petition should be denied.
“Respectfully submitted,
“Mac Q. Williamson, Attorney General,
“Jess L. Pullen, Assistant Attorney General.”

In addition to the petition and response and the exhibits, oral' testimony was taken by this court in the hearing to show cause including the evidence of the petitioner, who was present in person for the hearing. From the response and the exhibits it will be noted that the charge against defendant was filed on January 12, 1932, and the information was not filed until January 15, 1932. That on the 23rd day of January, 1932, he was arraigned and waived a reading of the information and entered a plea of not guilty, and that on March 5, 1932, he was present in open court and was represented by his attorney and asked permission to withdraw his plea of not guilty and be permitted to file a plea of guilty. This permission was granted and he was by the court sentenced to serve a life term in the penitentiary for murder in two cases. He was then delivered to the warden of the penitentiary on the 7th day of March, 1932, as shown by the record.

It will thus be seen that the record does not bear out the statement of the petitioner’s petition. It has often been held by this and other courts that defendant has the right to waive certain of his constitutional rights, and among those that he may waive is the right to waive a jury, and enter a plea of guilty, and if this has been done in a proper manner, the judgment and sentence in conformity to said plea will not be set aside by this court, either by appeal or by writ of habeas corpus.

We have recently had occasion to discuss this question in the following cases : Ex parte Meadows, 70 Okla. Cr. 304, 106 P. 2d 139; In re Opinion of the Judges, 70 Okla. Cr. 83, 104 P. 2d 726; Ex parte Gilbert, 71 Okla. Cr. 268, 111 P. 2d 205. These cases may be read for a full and complete discussion of the question of the right of a defendant to enter a plea of guilty. Many authorities from this and other states are cited and it is unnecessary to here repeat them.

It is also unnecessary to refer to the evidence taken in the hearing in this case. It reveals a state of factó which fully justified the penalty given defendant in this case. There is nothing in tlie record which would justify this court in assuming jurisdiction for the purpose of granting the relief prayed for. It is therefore ordered that the petition for writ of habeas corpus be denied.

JONES and DOYLE, JJ., concur.


text:
    Ex parte LEE HERREN.
    No. A-10184.
    March 25, 1942.
    (124 P. 2d 276.)

      Ogden & Wallace, of Ardmore, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for respondent.
   JONES, J.

This is an original proceeding in habeas corpus wherein the petitioner seeks his release from the State Penitentiary.

The petitioner was convicted in the district court of Carter county of the crime of receiving stolen property and sentenced to< serve one year and one day in the State Penitentiary. His conviction was appealed to this court and the judgment was affirmed. Lee Herren v. State, 72 Okla. Cr. 254, 115 P. 2d 258.

In this proceeding it is contended by petitioner that his commitment is void for the reason that at the time of his preliminary examination he filed an application for a change of venue; and, in addition thereto, a motion for a continuance because of the absence of his counsel, and that the justice of the peace declined to continue said cause or to grant said, change of venue which was tantamount to a denial of counsel in the preliminary examination.

All of the matters and facts set forth in the petition herein, if true, existed at the time of the appeal. This court will not permit an accused to appeal his judgment of conviction and speculate upon his chances of securing a reversal and then, after the judgment of conviction is affirmed, come into court in a habeas corpus proceeding and raise the same or other grounds which might entitle the petitioner to a new trial or his release from custody. To do so would not be conducive to' the efficient administration of our criminal laws. If this were not so, then a criminal case would never end, but after trial and conviction the court would be called upon to again try the issues by habeas corpus.

The demurrer of the respondent to the petition filed herein is sustained, and the writ is denied.

BAREFOOT, P. J., and DOYLE, J., concur.


text:
    Ex parte PAUL LEBARRE.
    No. A-10117.
    March 25, 1942.
    (124 P. 2d 277.)

      Walter Hubbell, of Walters, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for respondent.
   JONES, J.

This case is similar in many aspects to the case of Ex parte Boyd, 73 Okla. Cr. 441, 122 P. 2d 162, 163, decided by this court on February 4, 1942. It involves an interpretation of the statute authorizing the suspension of sentences. 22 Okla. St. Ann. §§ 991, 992; O. S. 1941, tit. 22, §§ 991, 992.

The petitioner pleaded guilty on March 7, 1938, in the district court of Cotton county, to a charge of larceny of livestock and was sentenced to serve a term of five years in the Oklahoma State Reformatory. The execution of this sentence was suspended during good behavior of the defendant, in accordance with the provisions of the Oklahoma statute.

On July 24, 1939, a complaint was filed against the defendant in Cotton county charging him with the crime of rape. The defendant was absent from the state at the time this charge was filed. The defendant was apprehended in Houston, Tex., by the Federal Bureau of Investigation in January, 1941, was returned to Oklahoma, and placed in the Cotton county jail. The defendant waived a preliminary examination on the charge of rape in the first degree which was pending against him and was bound over to await the action of the district court and committed to jail without bond.

Later, on the 9th day of April, 1941, after the said case had been regularly set for trial, the prosecuting witness refused to> appear against the defendant and the case was dismissed. At the same time, the county attorney filed a written application directed to the district court of Cotton county praying that the suspended sentence theretofore given the defendant be revoked.

On April 14, 1941, a hearing was had on said application, at which hearing the petitioner was present in person and with counsel. The court, after hearing the facts, made an order revoking the suspended sentence and directing the sheriff of Cotton county to forthwith transport the defendant to the State Reformatory.

This action was then instituted as an original proceeding in this court by the petitioner, who makes the same attack upon the proceedings as were contended by the petitioner in Ex parte Boyd, supra. In Ex parte Boyd, it is stated:

“Suspension of sentence under said statute is not a parole nor pardon, but is an authorized mode of' mild and ambulatory punishment, instituted by the Legislature for the purpose of giving persons who come within the operation of the statute an opportunity for reformation.”
“Only those persons coming within terms of statute are eligible for suspended sentence, but they have no right to demand the same; and it may not be granted to' them except at the discretion of the court.”
“Where, all constitutional and statutory guarantees have been observed in criminal prosecution, requirements of due process are fully satisfied, presumption of innocence is overcome, and hence suspension of sentence is not a matter of right, but purely within trial court’s discretion.”
“When execution of a sentence is suspended, the judgment itself is not impaired or limited. The time for its execution is merely deferred, as a matter of grace, subject to being withdrawn by the court for a violation of some of the conditions named in statute.”
“The revocation of a suspended sentence is a matter addressed to the sound judicial discretion of trial judge, and the hearing in connection therewith may be of summary character.”
. “In habeas corpus proceeding by accused, alleging trial court revoked suspended sentence without due process of law, the question for determination is whether there has been an abuse of discretion by trial court, and is to be determined in accordance with familiar principles governing the exercise of judicial discretion. That exercise implies conscientious judgment, not arbitrary action.”

In accordance with the conclusion reached in Ex parte Boyd, supra,, we confine ourselves in this case to a discussion of the questions as to whether the action of the district court of Cotton county in revoking the suspended sentence of the petitioner was arbitrary and constituted an abuse of judicial discretion.

The county attorney, in his written application to revoke the suspended sentence, stated that he was satisfied from the investigation he had made that the defendant was guilty of the crime of rape in the first degree, but that during the many months interim from the date of the filing of the preliminary complaint against the defendant to the date he was apprehended, the prosecuting witness became engaged and later married; and that at the time of the trial, being then a married woman, her husband objected to her testifying, because of the attendant publicity which she would receive by appearing as a witness against the defendant. It is further contended that defendant had been guilty of other violations in that he had registered for the draft under an assumed name, and that while he was an inmate of the county jail awaiting trial upon the rape charge, he had sought to intimidate witnesses to be used in the trial against him, and that through a letter intercepted by the officers which was written by the petitioner it was disclosed that the petitioner was making all efforts in his power to secure other persons to commit the offense of subornation of perjury in connection with the rape charge.

It is unnecessary to' detail the evidence introduced by the county attorney in support of his application, other than to state that the proof introduced substantiated the allegations set forth in his application. On behalf of the petitioner it is contended that the registration for the draft under an assumed name and the writing of the letter which was intercepted by the officers were not sufficient in themselves to' show a violation of the conditions of the suspension set forth in the statute and the rape charge should not be considered because it was dismissed because of insufficient evidence.

With this contention of petitioner we cannot agree. The court had a right to consider those facts, together with the fact that the defendant was a fugitive from justice for several months before he was apprehended. The petitioner had failed to make the reports to the district judge showing that he was conducting himself as a law-abiding citizen, as required by the statute. It is our conclusion that the defendant has failed to sustain the burden of showing that the act of the district court of Cotton county in revoking the suspended sentence was arbitrary and an abuse of judicial discretion.

The writ is denied.

BAREFOOT, P. J., concurs. DOYLE, J., concurs: in conclusion only.


text:
    VASCO GOINGS v. STATE.
    No. A-9892.
    March 25, 1942.
    (124 P. 2d 280.)
    R. A. Wilkerson, of Pryor, for defendant.
    Mac Q. Williamson, Atty. Gen., J. Walker Field, Asst. Atty. Gen., and T. L. Marteney, Co. Atty., and Ernest R. Brown, Sp. Counsel, both of Pryor, for the State.
   BAREFOOT, P. J.

Defendant, Vasco Goings, was charged jointly with Huse DeArmond in the district court of Mayes county with the crime of robbery. He demanded a severance which was granted, was tried, convicted, and sentenced to a term of ten years in the penitentiary, and has appealed.

This case was first set for oral argument on the 2nd day of February, 1941. At that time oral argument was presented by counsel for defendant and by an Assistant Attorney General, and the case was submitted for consideration of the court. After an examination of the record, an order was entered that this case should be reset for oral argument upon the merits', and that counsel who represented the state at the trial of the case and also counsel for defendant be present and present the same. It was set for March 5, 1942, and at that time was fully presented and the case was again submitted. This brings us to a review of the testimony offered as revealed by the record.

Defendant, Vasco Goings, was charged jointly with Huse DeArmond with robbery of one Hugh Creech on the 11th day of April, 1939, in Mayes county. A severance was granted and defendant Vasco Goings was first tried and convicted as above stated.

The prosecuting witness was a man 76 years of age. He was living alone as a recluse in a small one-room house in the country ■ about 3% miles east of Salina in Mayes county. Defendant, Vasco Goings, lived with his father on a farm about 3% miles distant from where Hugh Creech, the prosecuting witness, lived. By the road it would have been a distance of eight or ten miles. The day on which defendant was charged, April 11, 1939, the defendant had been tried in the district court of Delaware county in some criminal case, the exact crime not being shown by the record. The trial of this case continued for two days. On that date he was acquitted by the jury. At about 5:30 in the afternoon he returned to his home from Jay, the county seat of Delaware county, and accompanying him was one of his witnesses, Sam Taylor, whom he had taken to Jay for his trial on that day. About 30 minutes prior to his arriving home, Alex Goings, the father of defendant, and Donas Douglas, a boy 14 years of age and a nephew of defendant, returned to the home from Jay where they had also attended defendant’s trial. It being a cold day, a fire was started in the stove, and the defendant and Donas Douglas, his nephew, began the doing of the chores, among which was the milking of the cows. It was after dark when this was finished, and Donas Douglas returned to the Alex Goings home with his milk, and defendant took his milk to the home of his wife and two children. He was living separate and apart from his wife, they having been divorced, but she was living in a house on the same premises with the children.

The witness Sam Taylor, who was a disinterested witness so far as the record is concerned, remained at the Alex Goings home during the night of April 11, 1939. In that home during the night was Alex Goings, father of the' defendant, Sam Taylor, Donas Douglas and defendant, Yasco Goings. They all testified that the defendant, Yasco Goings, slept in the same bed with the witness Sam Taylor and at no1 time did he leave the house or the premises, and that he returned there from doing up the chores and taking the milk to his wife’s home sometime between 8 and 8:30 o’clock.

Just as defendant with Donas Douglas started to doing the chores, Galvin Owens and his wife Mary Owens, who were farmers and lived about one-half mile from the Alex Goings home, came there and they saw the defendant, Vasco Goings, with his milk buckets. They remained at the Alex Goings house until just a little after 8 o’clock, at which time they returned to their home. Mr. Owens thought that they returned home “sometime between 7:30 and 8 o’clock.” Mrs. Owens said: “It was to close to 8 o’clock. I know it was dark.” Soon after they arrived home they saw a man whom they took to be Martey Phelan pass by their house on a horse. He was riding along whistling. They could not positively identify him, but they knew him arid in their best judgment it was he.

The witness Martey Phelan testified for the state that he lived about 3% miles east of Salina and about that far from the Goings home, and about a quarter or half a mile from the home of Hugh Creech, the prosecuting witness. The distance from his home to the Goings home by the road was some eight or1 ten miles. That he went to the Alex Goings home on the night of April 11, 1939, for the purpose of seeing the defendant, Vasco' Goings, about trading for a. horse. That he went through the country on horseback and he thought he arrived there something like 8:30 and stayed about 30 minutes and left. That the defendant was not at home while he was there, and on cross-examination, he testified:

“Q. When you went away you rode off on your horse? A. Yes, sir. Q. Tell us whether or not after you got started you heard some one calling for .you? A. It sounded like somebody said, ‘Wait a minute!, Martey.’ Q. ‘Wait a minute, Martey.’ You know who that was? A. It sounded like Vasco,' but I don’t know whether it was or not. Q. Well, you know his voice, don’t you? A. Yes, sir. Q. And do you tell the jury in your judgment that was Vasco’s voice calling you? Mr. Brown: Object to that, the witness just testified that he didn’t know whether it was Ms or not. The Court: Overruled. Mr. Brown: Exception. By Mr. Wilkerson: Q. You may answer1, Martey. A. Hey? Q. You may answer the question, was this Vasco’s voice calling you to wait a minute, in your best judgment? A. Yes, sir. Q. And how long, have you known Vasco? A. About all my life. Q. You didn’t go back? A. No, sir. Q. Why didn’t you go back? Mr. Brown: Object to that as incompetent, irrelevant, and immaterial, doesn’t tend to prove or disprove any of the issues involved in this lawsuit? The Court: Overruled. Mr. Brown: Exception. By Mr. Wilkerson: Q. You may answer, Martey? A. Well, sir, I was away down the road, and I didn’t think there was any use. I thought I could see him — he could see me some other time. Q. Yes, you could see him another day? A. Yes, sir.”

We have outlined the testimony revolving around the defendant on the date that he was charged. Let us now go to the scene of the home of the prosecuting, witness, Hugh Creech. This old gentleman 76 years of age was living in a small one-room boxed house alone about SV2 miles east of Salina. During the day of April 11, 1939, he had worked around his place, and late in the evening he had done his chores, cooked his supper and sat down for about “an hour or so,” and lit his lamp and lay down across the bed with his clothes on and rested. He had a small “King” heater in his room, and when he waked up he put some heavy green wood in the stove, and then pulled off his clothes, blew out the lamp and went to bed. He did not know the exact time, as he didn’t have a timepiece. He was asked:

“Q. Now, after you laid down the second time, Mr. Creech, do you have any idea of about how long you laid there before something happened, if anything did happen? A. No, I don’t have much of an idea — never went to sleep.”

He further testified:

“Q. Well, now, just tell the jury just what happened there, Mr. Creech, tell the jury, and tell them so they can hear you. A. I was just lying, there in my bed and something come against the door, and the door flew clear open, clear open, and those fellows stepped right up in front of that stove, in the light of it. Q. Who were those fellows? A. Vasco Goings and Huse DeArmond. Q. Do you see either one of those in the courtroom now? A. Yes, sir. Which one? A. Vasco: Q. Vasco Goings? A. Yes, sir. Q. Is Vasco Goings the defendant sitting over there ? A. Yes, sir. Q. He is one of the parties? A. One of the parties. Q. Then, what happened after they stepped up in the door, Mr. Creech? A. Vasco grabbed me, and I made an effort to try to get loose from him, and he hit me over the head with a flashlight and then got hold of me to where I couldn’t do1 anything, and I caught hold of his flashlight, and after that twisted around with him, and I don’t know whether I cut the light off, or whether he did. Mr. Wilkerson: Object to that as not responsive to the question. By Mr. Brown: Q. Now, Mr. Creech, in scuffling with the flashlight, was there any .time during that time1 — was the flashlight on or off a part of the time? A. It was on and right off. Q. How many times did it go on? A. Twice. Q. Twice, while scuffling? A. Yes. Q. And was it in such position at any time that you could recognize or see the face of the party you were scuffling with? A. Yes. Q. Did he have any part of his face covered? A. Yes. Q. What part of his face did he have covered? A. From his nose down. Q. And do you know who it was that came in the door — when you see them first come in the door? A. Yes, yes, I knowed them when they first stepped up in the door. Q. Now, you recognized them and knew positively who they were? A. Yes. Q. Now, what did the other defendant, Huse DeArmond, do when he got up in the door? A. He just run a round to1 the walls for the guns, grabbed them and took them out of doors. Q. Did the other defendant have a flashlight? Yes, both had a flashlight. The Court: I didn’t get that — did both have a flashlight? A. Both had a flashlight. By Mr. Brown: Q. Then, how long was Hnse DeArmond gone after he went ont of doors with the guns? A. Didn’t seem to me like, not over ten or fifteen seconds, just right out and right back. Q. And what did he do when he came back in? A. He went to searching for my pants. Q. Did he find them? A. Yes. Q. Where did he find them? A. Found them lying across the foot of the bed. Q. And what did he do when he found them? A. Picked them up and taken what money I had in my pockets out. Q. Did you have any money in your pockets? A. Yes. Q. Did you have it all in one pocket or more than one pocket? A. I had it all'in one pocket in a billfold. How much did you have, Mr. Creech? A. I had a $20 bill and a $5 bill, seven $1 bills, two dimes and two nickels, and I don’t know, a few of those mills, four, five or six, something like that, in the billfold. Q. What did he do with your trousers after he searched your pockets? A. Throwed them back on the bed. Q. And what became of the billfold? A. Took it with the money. Q. Then, what did he do after that happened, after he threw your trousers down, what did he do then? A. Vasco pulled me off the bed and come on around, and Huse caught my feet, and Vasco took me head foremost out of the front door. Q. And what direction did they take you? A. When they got out of the door? Q. Yes. A. They went pretty near out north, a little east of north, up on the road. Q. And about how far is that to the road from your house — started out to the road? A. It is about 40 yards. Q. About 40 yards? A. Yes. Q. Then, which way did they go- from there? A. Turned right back west. Q. And about how far did they carry you then? A. About 45 oí» 50 yards west. Q. Is there a creek there by your place? A. Yes, went across the creek. Q. Is there any water in the creek — was there? A. No, it was dry. Q. And where did they carry you with reference to the east or west bank of the creek? A. Turned me loose at the west bank of the creek. Q. Then what did they do? A. Knocked me down. Q. How did they put you down when they put you down, if you remember? A. Just kind of straightened me up and hit me — -knocked me down. Q. You know which one it was that hit you? A. No, I don’t; that is one thing I don’t know, which one. X know one of them hit me, and I know I fell Q. When you fell, what did you do? A. I scrambled around, and when I got up on my knees, they was running up the road. Q. Then, what did you do? A. I went back to the house as quick as I could, but I couldn’t get back very fast— Mr. Wilkerson: (Interrupting) We object now to any voluntary statement. The Court: Just answer the question. By Mr. Brown: Q. What kind of clothes did you have on, Mr. Creech? A. Just a union suit. Q. And what was the condition of the weather that night as to being warm or cold? A. It was cold. Q. Then, after you got back, what did you do in the house? A. I just set down there in the rocking chair by the stove and stayed there until daylight. Q. Now, was there anything else gone from your house except the money out of your pocket? A. Nothing. Q. Was there anything else taken away from your house besides your money? A. Well, the guns was gone.”

He then testified to going to town early in the morning and seeing Charlie Whiteday, who was a constable, and of going to the office of the justice of the peace and phoning for the sheriff and swearing out a warrant for the defendant and Hnse DeArmond charging them with the robbery. That on that evening the constable and city marshal of Salina came to his home and found his guns out close to his house, and they were returned to him. He also testified he had known the defendant, Vasco Goings, for some five years and had frequently seen him.

On cross-examination he testified as to the length of his room and of the location of the stove and bed. This was all of minor importance. As to the time of the robbery, he said:

“Q. Well, do you have a judgment as to the time? A. I would think it would be about around about 9 o’clock, that’s all, because I ain’t got no clock, and I ain’t got no watch.”

He further testified:

“Q. Now, Mr. Creech, when this man entered your house — these men entered your house, what did you do first? A. The first thing he got hold of me. Q. And how did they move towards you with reference to moving fast or slow? A. They moved fast. Q. Did they come on a run? A. Mighty near a run, just about as fast as they could come without running. Q. And were they moving fast when they entered the room? A. Yes, sir. Q. They forced the door open, and moved immediately to the bed? A. Yes. Q. And moved rapidly? A. Yes. Q. Now, did they come between the stove and the east wall, or did they run around the stove? A. They come between the stove and the end of the bed.”

With reference to the blindfolds, the witness said:

“Q. I will get you to tell us about the rags you say these men had on their faces. What kind of rags were they? A. They was white looking rags. Q. Were they large or small? A. I couldn’t tell you about that. Q. Now, didn’t you testify at the preliminary hearing that they were large rags? A. I think I must have told them that they were handkerchiefs, but I don’t know. Q. How were they fastened around the neck? A. Just tied around here (indicating). Q. Did the nose come over the ears (indicating) ? A. No. Q. Could you see the ears? A. Yes. Mr. Wilkerson: Your Honor, excuse me just a minute— The Court: Anything further? Mr. Wilkerson : Yes, your Honor, just a minute. Now, do you know whether or not the handkerchiefs tied around the back of their heads? A. I don’t know whether they were tied back of their heads or not; it was over their face. Q. Now, would you mind showing the position — (indicating) this is a clean handkerchief, Mr. Creech. A. Clean— Q. That’s right. Would you mind showing the jury just how it was over their faces — put on their faces? A. (Indicating). Q. Would you mind telling the jury whether it was over their nose? A. Just up to the nose (indicating).”

He further testified that he had previously been convicted of a violation of the prohibition law and had served a sentence for the same.

Mr. Herrington, the city marshal who made an examination of the premises, testified as to the finding of the guns, and on cross-examination he said:

“Q. Did you make an examination for tracks, Mr. Herrington? A. Yes, sir, we did. Q. And what kind of tracks did you observe? A. Well, there was one track that looked to be about a No. 7, ladies’ shoe, and one that looked to be a work shoe, about a No. 11 or 12. Q. One of them was very large and the other one was small, is that right, Mr. Herrington? A. That’s right. Q. Those tracks were pointed out by Mr. Creech, or do you recall? A. I don’t recall that Mr. Creech was with us when we observed the tracks. Q. Now, did you ever have occasion to. observe the kind of shoes that Vasco Goings wears? A. I don’t believe I ever did. Q, Those tracks were plain there, were they, Mr. Herrington? A. Yes, sir, they were. Q. And could have been seen? A. Yes, sir.”

J. O. Turner testified that he had a conversation with Mr. Creech, the prosecuting witness, and that Mr. Creech told him that the parties who robbed him “had a white handkerchief, a white cloth or something over their faces, and he could only see their eyes, or something to that effect — as well as I got it.”

Dorothy Bryan, the daughter of Mr. J. O. Turner, testified that on the 12th or 13th of April, 1939, just shortly after the robbery, she heard the prosecuting witness, Mr. Creech, say; “It was tied on along here (indicating) and his hat was pulled down just so. you could see his eyes.”

Bud Gann, a witness, for defendant, testified to a conversation with prosecuting witness just prior to the trial in which he stated: “If he knowed who it was. he would get his gun and shoot them.” '

Martey Phelan, who testified for the state, was called by defendant as a witness and testified that he had recently had a conversation with prosecuting witness and that he said: “If I knowed who done that hijacking, I would kill them.” He also said the prosecuting witness, Mr. Creech, said: “He says if I come up here and testify that Yasco — it was Yasco — if I would come up here and testify that, it would help him.” He further testified:

“Q. Hid he say what testimony would help him? A. Yes, sir. Q. What was it? A. He said if I would come up here and swear that Yasco was — that he had give him some money. Q. He would give you money? A. He would. Q. Who do you mean? A. Mr. Creech.”

One witness testified that the reputation of Hugh Creech for truth and veracity was bad. Another witness was questioned in regard to- this, and when finally asked if he knew the reputation of Mr. Creech for truth and veracity said: “I wouldn’t want to,” and was excused.

The defendant as a witness in his own behalf testified as follows:

“Q. What is your name, please, sir? A. Yasco Goings. Q. You are the defendant in this case? A. Yes, sir. Q. How old are you? A. 34. Q. Where do you live? A. I live seven miles northeast of Salina. Q. Do you live on any highway? A. No. 20. Q. I-Iow far is it, on highway No. 20 to where you live, please, sir? A. I didn’t get you. Q. How far is it on highway 20 from Salina, to where you live? A. Oh, it is about seven miles. Q. You know about where Mr. Creech lives? A. Yes, sir. Q. And does he live on the same highway that you live on? A. No, sir, he lives east of Salina. Q. What road is that known as? A. Well, it- is the road that goes up to Sa-lina, up Salina creek. Q. Do you know whether or not that is the Kenwood Koad that runs out over the hill there? A. Yes, sir. Q. In going from your place to Creech’s home, in a car, how would, you go? A. Well, I would go to Salina and turn east. Q. And how far would that be from your house to Mr. Creech’s house? A. About ten miles. Q. Uh-huh. Mr. Goings, you have heard the testimony of Mr. Creech about your being at his house on the night of April 11, 1939? A. Yes, sir. Q. State whether or not you were there then? A. I never was there at Mr. Creech’s since he has moved down there. Q. You were never there since he has moved there? A. Never there since he has moved there. Q. Tell the jury whether or not you had anything in the world to do with hijacking Mr. Creech? A. I did not. Q. Did you have anything to do either directly or indirectly of sending somebody up there to hijack him? A. No, sir. Q. Did you go into his house with a cloth tied around your face, and push the door open and jump on him, and beat him Avith a flashlight, or anything else? A. No, sir. Q. Did you drag him out of the door, and drag him down to the creek, and hit him in the head, and leave him out there and go> off and leave him? A. No, sir. Q. Do you know about where Mr. Creech lives? A. Well, right about, yes. Q. Do you know hoAv he acquired that land that he owned? Mr. Brown: We object to that as incompetent, irrelevant, and immaterial. The Court: Sustained. By Mr. Wilkerson : Q. Did you have anything to do with selling the land to him? Mr. Brown: Object to that, if the Court please, as incompetent, irrelevant, and immaterial. By Mr. Wilkerson: Q. I Avill put it this way: Are you acquainted with the tract of land that he owns? Mr. BroAvn: Object to that, as incompetent, irrelevant, and immaterial, if the court please. The Court: Overruled. Mr. Brown: Exception. The Court: It might be and might not be. By Mr. Wilkerson: Q. Now, since Mr. Creech has had his house built, have you ever been on that tract of land? A. No, I have not. Q. Where were you on the 11th day of April, 1939? A. I was at Jay. Q. What were you doing up there? A. I was up there in court. Q. In court? A. Yes, sir. Q. Were you being tried? A. Yes, sir. Q. Where were you on the 10th? A. I was at Jay. Q. Are you acquainted with Houston DeArmond? A. Yes, sir. Q. Did you see him on the 11th day of April? A. I did not. Q. Did you see him on the 10th? A. No, sir. Q. How long had it been since you had seen Huse DeArmond on the 11th day of April, 1939? A. Oh, I judge around two weeks. Q. Did you go anywhere with Huse DeArmond on the evening or night of April 11, 1939? A. No, sir. Q. What time did you get home from Jay, Mr. Goings, on the night of the 11th of April? A. Well, it was about dark — between sundown and dark, I judge. Q. And when you got home, what did you do-first? A. Well, the first thing I warmed by the fire. It was cold and I went in the house. Q. Then, what did you do? A. I think I helped to get in some wood and milked — about all I did, practically. Q. Now, when you got there, did anybody help you milk? A. Yes, sir. Q. Who? A. Donas Douglas, my nephew. Q. When you finished milking, where did you go? A. Well, I taken some milk down to Marie- Goings, to my kids. Q. That was Marie Goings? A. Yes, sir. Q. She was your wife? A. Used to be. Q. Did you live with her at the time? A. No-, sir. Q. You were divorced fro-m her, were you? A. Yes, sir. Q. And upon whose land was she living? A. Well, it belonged to my father. Q. Was she living there near your father’s house and where you were living? A. I was living in the house with my father. Q. State Avhether or not it was your custom to take the milk down to your children. Mr. Brown: Object to that, if the Court please, as incompetent, irrelevant, and immaterial. The Court: Overruled. Mr. Brown: Exception. A. Yes, quite often I would take the milk down. By Mr. Wilkerson: Q. After you had — when you went down to- the house to take the milk to the children, what did you do there, if anything? A. Well, I warmed by the fire. Mr. Brown: We object to- that as incompetent, irrelevant, and immaterial. The Court: Overruled. By Mr. Wilkerson: Q. And then, what did you do? A. Well, after I warmed awhile, I come on back home to my father’s house, Q. What did you do when you got there? A. Well, I At’ supper. Q. Did you eat with the rest of the members: of the family? A. No, the rest of them had done ‘et.’ Q. And what time of the night was it then? A. Well, I judge it was nine o’clock, but I don’t know the exact time. Q. After you ate supper, what did you do? A. I went to bed. Q. With whom did you sleep? A. I slept with Sam Taylor. Q. I will get you to tell the jury, if you-will, the position of the beds in the room- — I believe they were both in the same room? A. Yes, sir. Q. Where were the beds in the room? A. Well, one of them Avas on the north side of the room, and the other one on the south end. Q. Which one did you sleep in? A. I slept in the one that was on the south end of the building. Q. Which of you went to bed first, you or Sam Taylor? A. Sam Taylor. Q. And what was the position you occupied in the bed Avith reference to whether or not you slept in front or behind. A. I slept behind. Q. Did you leave that bed that night? A. No, sir. Q. What time would you say it was when you went off to bed and went to sleep? A. Well, I judge it was around about 9 before I went to sleep. I talked a little while after I went to-bed, Sam and I. Q. Now, do you own an automobile? A. Yes,- sir. Q. Was your automobile there at home that night? A. Yes, sir. Q. How many of them were there at your home? A. Well, there was Sam Taylor, myself and my father. Q. How many automobiles? A. Oh, just —only the one. Q. What kind of an automobile was that? Mr. Brown: If your Honor please, we object to that as incompetent, irrelevant, and immaterial. The Court: Overruled. Mr. Brown: Exception. A. A 1928 Chevrolet. By Mr. Wilkerson: Q. What was its condition Avith reference to being fit to run? A. Well, the rubber was bad on it, and the lights wasn’t no good. Q. Did you use your automobile in going to Jay for the trial? A. No, sir. Q. Why didn’t you use it? A. The casings Avas too bad to. Q. How long had you known Mr. Creech? A. Oh, I have known him for, I guess four or five years, something like that. Q. Have you talked to Mr. Creech since this thing happened? A. Yes, sir. Q. Where was that? A. It was at Salina. Q. Where in Salina? A. Well, at Salina, a little old hamburger joint they have got in town —south side of the street, Salina. Q. What was said in that conversation? A. Well, he called me off and told me that he wanted to maté a settlement with me, and we walked down around that building, and he told me if I would give him $50 and the $35 that he owed me, he wouldn’t appear over here at the day of the trial. Q. And what did you say? A. I told him I wouldn’t do it. Q. Was anybody present at the time he called you off? A. Yes, sir. Q. Who was that? A. Lee Miller. Mr. Wilkerson: I believe you may cross-examine him.”

Lee Miller, a witness for the defendant, testified he heard the prosecuting witness say to the defendant at Salina that he would like to make a settlement with him, and that they walked around the building,, and he heard the defendant say to him, “I can’t do that.”

On rebuttal the- prosecuting witness, Hugh Oreech, was recalled and testified that he did not make the statements attributed to him by the defendant and by the witnesses J. O. Turner, Bud Gann and Martey Phelan. Two witnesses, Charlie Tuttle and Charles Brashiers, testified to the good reputation of the prosecuting witness, Hugh Creech, as to truth and veracity.

We have set out very fully the evidence in this case. It is contended by the defendant:

“First. That the evidence adduced at the trial of said cause was insufficient to support a verdict of ‘guilty.’
• “Second. That the defendant did not have a fair trial.”

These alleged errors may be considered together.

During the trial of this case the record reveals that on practically every ruling by the court on the admission or rejection of evidence an exception was taken by the special prosecuting attorney to the ruling of the trial judge in the presence of the jury. When the prosecuting witness was on the stand and being cross-examined, he was asked by counsel for defendant if he had not had a conversation with J. O. Turner and his daughter, Dorothy Bryan, at a certain place on the day after the robbery, and if he had not made statements to them with reference to the kind of cloth the parties were wearing, at the time of the robbery. This question was asked, as stated by counsel, for the purpose of laying a predicate for impeachment of the witness and for this purpose was properly asked. Counsel who- was acting as special prosecutor for the state objected strenuously to these questions, and these questions and answers cover several pages of the record which was in the presence of the jury. And when the court permitted any question to be asked, counsel for the state always took an exception to the ruling of the court in the presence of the jury. The taking of these exceptions by counsel representing the state could not serve the state for any purpose if the defendant was acquitted, and an examination of them reveals that the exception could only have been taken for the purpose of prejudicing the defendant and an attempt to cause the jury to believe that the trial court was in error in admitting this evidence.

When the witness J. O. Turner was produced as a witness and counsel for defendant propounded to1 him the same questions which were asked Hugh Creech in laying a predicate for impeachment, counsel for the state objected for the reason that it was not proper, and the trial court sustained the objections thereto, and defendant excepted.. This was a proper question and was in proper form. The court, however, did permit the witness to testify as to the conversation he heard from the prosecuting witness.

While the defendant was upon the witness stand, counsel for the state questioned the defendant as to his being in the town of Jay on the day of the robbery, April 11, 1939, attending court and asked him if Charlie Schrog-gins was not present with him as one of his witnesses and further asked him if he didn’t have a conversation with the said Charlie Schroggins, The record reveals the following with reference to this:

“Q. Do you remember a conversation you had with him out on the north side of the courthouse over there at Jay? A. I remember talking to Charlie. Q. Will you tell the Court and jury what that conversation was? Mr. Wilkerson: We object to that for the reason that it doesn’t appear that the conversation would be competent, relevant or material. Mr. Brown: It will be developed, your Honor, please. The Court: Well, you might state what it was about. By Mr. Brown: Q. Relative to this case? Mr. Wilkerson: We object to it, for the reason that it is too indefinite and uncertain. This case was not at that time pending. Mr. Brown: Let him tell it. Mr. Wilkerson: We object to it for the reason of the indefiniteness of the question. The Court: (To the Reporter) Read the question. (At this time said question is duly read to the court by the reporter.) The Court: What time do you mean? Mr. Brown: The day before it happened that night. The Court: Overruled. Mr. Wilkerson: We except, and if the Court please, I would like to make a record on this. The Court: All right. Overruled at this time. Mr. Wilkerson: We except. By Mr. Brown: Q. Now, did he talk to you relative to this case? A. Well, I don’t know whether you would call it relative to this case or not, but he talked to' me. Q.' Tell what was said. Mr. Wilkerson: We object to that. The Court: Well, sustained. By Mr. Brown: Q. I will ask you if you and Charlie Schroggins on the 11th day of April, 1939, at the courthouse in Jay, and just on the north side of the courthouse, didn’t have a conversation relative to the hijacking of Mr. Creech? Mr. Wilkerson: We object to that for the reason it is too indefinite, calls for a conclusion of the witness, and is not the way to impeach the witness, and ask that it be stricken from the jury, and the jury admonished not to consider it. The Court: Sustained in that form. You may ask him if he didn’t say such and such a thing and such a place to some particular person. By Mr. Brown: Q. Now, did you and Charlie Schroggins have a conversation on the north side of the courthouse at Jay on the 11th day of April, 1939, with relation to the hijacking of Mr. Creech? Mr. Wilkerson: We object to that, if the court please, and ask the court to admonish the prosecutor not to repeat that question, for the reason the court has sustained an objection to it. The Court: Sustained in that form. Mr. Wilkerson: And we will ask the court to admonish the jury not to consider that. The Court: Well, of course, any question to which the court has sustained an objection, the jury will disregard the question. Mr. Brown: It just occurs to me— (At this time Court and counsel confer out of the hearing of the jury and the court reporter.) Mr. Brown: (At the conclusion of said conference) That’s all. Mr. Wilkerson: (to the witness) Come down. Witness excused.”

We think this question was competent and that the trial court should have permitted it to be answered. If the defendant on that date had had such a conversation with the said Charlie Schroggins, the said Charlie Schrog-gins would have been permitted to testify to this conversation either as direct or rebuttal testimony if the proper predicate had been laid therefor, but the record reveals that after this question was propounded by counsel representing the state in the presence of the jury, the state made no effort and did not call the witness Charlie Schroggins and offer him as a witness in this case. The asking of this question in the presence of the jury and the failure to call the witness was certainly highly prejudicial and unfair to the rights of the defendant and under the facts in this case was without doubt the leading factor in causing the jury to return a verdict of guilty against this defendant.

Another ground relied upon by defendant, that he did not have a fair trial in this case, is set up in his motion for new trial. The fourth paragraph is as follows:

“4. One of the jurors to whom the said cause was tried, namely Herbert Bates, was disqualified in fact to sit as a juror in said cause, because of the bias and prejudice which he, the said Herbert Bates had and held against this defendant and against the near relatives of this defendant, with which said relatives this defendant was closely associated, and near whom this defendant had lived during the whole of his life; that the feeling of enmity and hatred which the said Herbert Bates entertained toward this defendant was deepseated and of long standing, bnt this fact was not known to the defendant at the time the jury for the trial of said cause was being qualified and the said fact was not known to the defendant’s attorney.
“The defendant states the facts to be that some eight years prior to the time of the trial, the said Herbert Bates had an altercation or personal difficulty with one of the near relatives of this defendant; that thereafter, and since the said altercation, the said Herbert Bates, has entertained an ill will and the feeling of hatred toward this defendant as well as all of the other members of the Goings’ family; that he, the said Herbert Bates has failed and refused to speak to or be neighborly with any of the relatives of this defendant.
“Defendant states that said altercation was, as he understands, of a minor nature, and the fact that the said Herbert Bates has, through the years, entertained the feeling of ill will and refused to speak for such a long period of time to the relatives of the boy with whom he, the said Herbert Bates, had the difficulty, clearly shows that the said Herbert Bates is a man who entertains a feeling of ill will for a long period of time, andi one who would be unable to cast aside personal feelings as a juror in said cause; that this defendant avers that the said Herbert Bates took the said feeling of ill will toward him and bis family into the jury box; that by reason thereof he, the said Herbert Bates, did express himself in a manner that influenced the jury in making up its verdict, and this defendant verily believes that by reason of said feeling on the part of him, the said Herbert Bates, the verdict of the jury was changed, and that if the said juror had been of an unbiased and unprejudiced mind, a different verdict would have been returned by said jury.
“The defendant therefore avers and alleges that he did not have a fair trial; that he was not tried by an unbiased and unprejudiced jury as the law contemplates.
“The defendant is attaching hereto and making a part hereof the affidavits of W. F. Goings, Jake J. Muskrat and Mary E. Goings to- substantiate defendant’s allegations of bias and prejudice on the part of the said juror, Herbert Bates.”

Attached to< the motion were three affidavits made by W. F. Goings, Mary E. Goings, and Jake J. Muskrat. In the affidavit of W. F. Goings, who was an uncle of defendant, it is stated that he was acquainted with one Herbert Bates who was a juror in this case. They had at one time been close friends and had visited together and had known him for a period of twenty-five years. That about eight years prior to- the trial the said Herbert Bates and the son of affiant, Brewster Goings, had had a difficulty and that the said Herbert Bates had become so bitter against him and his family that he had not spoken to him since that time, although he had been with him and near him on many occasions. That the said Herbert Bates operated a mill and that he sent certain members' of his family, to wit, his wife and son, to have some com ground into meal, and that said Herbert Bates. had refused to- gyind the corn, saying that he did not want the business of this affiant and his family. He also stated lie was not present at this trial and did not know the said Herbert Bates was a prospective juror in this case.

The affidavit of Mary E. Goings, his wife, corroborated the affidavit of her husband with reference to she and her son taking the corn to his mill and his refusal to grind the same. The further stated that Herbert Bates after the difficulty with her son had ignored her and refused to' speak to her when she met him.

The affidavit of Jake J. Muskrat states that for a long time he has been personally acquainted with the Goings family and Herbert Bates. That he is not unfriendly to any of the parties. That since the difficulty between Herbert Bates and Brewster Goings, the said Herbert Bates had been unfriendly to the Goings family, and upon one occasion Herbert Bates said to him he “hated everybody by the name of Goings, and had no use for anybody by the Goings name.”

As above stated, we have carefully reviewed and quoted from the evidence in this case. We are well aware of the many decisions of this court that where there is evidence in the record from which the jury could legitimately conclude that defendant was guilty of the crime charged a conviction will not be set aside because of the alleged insufficiency of the evidence, and that where there is a conflict in the evidence, and this has been passed upon by the jury, the verdict will not be set aside. The true rule has been ably expressed in a case before the territorial court of Meierholtz v. State, 14 Okla. 359, 78 P. 90, 91, in an opinion by Judge Burford, where it is stated:

“While this court will and does examine the evidence in every case where it is argued that the evidence is insufficient to support the verdict, yet it is rare that we find a case where such examination would be required if counsel for the complaining party would bear in mind, when preparing the case for the court, and apply the rule, that the appellate court will not weigh conflicting and contradictory evidence which has been passed upon by the jury and trial court, but will only interfere where there is an entire absence of testimony upon some material issue, or that the evidence so clearly preponderates in favor of the defendant as to suggest the possibility that the verdict was the result of • misapprehension or partiality.”

It is unnecessary to cite further cases upholding this doctrine, and if this was the only error relied upon we would not hestitate to apply those rules to the instant case. It is hard to read the record and see how the jury came to the conclusion of defendant’s guilt. It is certainly what one would consider a close case and one in which some very small matter might cause the jury to come to a certain conclusion. We have above given several instances which undoubtedly were the ones which caused the jury to return a verdict of guilty, and if they were, the defendant did not have that fair and impartial trial to which he was' entitled under the law. The only corroboration of the prosecuting witness, Hugh Creech, in his identification of defendant as one of the parties who robbed him as stated in the state’s brief, was the testimony of the witness Martenus; or Martey Phelan, when he testified defendant was not at the home of his father, Alex Goings, while he was there for 30 minutes near 8 o’clock p. m., on the night of the robbery, April 11, 1939. This contention, however, overlooks the fact that this same witness testified positively that when he was leaving the Goings home he heard a voice calling him which he recognized as the voice of the defendant, whom he had known for several years, and that he did not stop or return for the reason that he thought he would see the defendant at some future time. If this testimony is true, then the defendant could not have been at the scene of the robbery, for tbis was just near the time it was being perpetrated, and it was a distance of three and one-half miles through the country or ten miles by the road. It will be further remembered that this evidence is corroborated not only by the defendant, but by his father, Alex Goings, his nephew, Donas Douglas, and by three disinterested witnesses, Sam Taylor, Calvin Owens, and Mary Owens, who saw him at this same time and at the very time the prosecuting witness said he was being robbed by defendant and his codefendant at his home.

Attention is also called to the fact that there is not a line of evidence in the record to connect this defendant with his codefendant, Huse DeArmond, either before or after the robbery. No part of the property taken in the robbery was found in his possession, notwithstanding the fact that he was arrested on the following morning at his father’s home. No effort was made to compare his tracks with the ones found by the officers at the Hugh Creech home on the evening following the robbery, and the testimony of the officers was such as would lead one to1 believe that the tracks were not such as would fit his. No effort was made to see if there were any fingerprints on the guns which were handled by his codefendant, Huse DeArmond, according to> the prosecuting witness. The fact that the parties who committed this robbery had handkerchiefs or cloths over their faces would have made their identification much more difficult, and the statements made by the prosecuting witness soon after the robbery that if he had known, whu robbed him he would kill them, all have a tendency to make this such a close case that the least irregularity might cause an unfair trial of this defendant. We think the answer to it is the question propounded to the defendant upon cross-examination by the special prosecuting attorney when he asked: “Q. I will ask you if you and Charlie Schroggins on the 11th day of April, 1939, in the courthouse on the north side of the courthouse, didn’t have a conversation relative to the hijacking of Mr. Creech?” This question was repeated the second time in the presence of the jury. To our mind, under the facts in this case, and taking into consideration the fact that no effort was made by the state to bring the witness Charlie Schroggins before the jury to' testify with reference to this conversation, it was highly damaging and prejudicial to the defendant and within itself demands that a new trial be given in this case.

In the case of Humphrey v. State, 8 Okla. Cr. 449, 128 P. 742, 743, this court said:

“When the issues are sharply drawn and the facts are sufficient to justify an acquittal or to sustain a conviction, such erroneous instructions cannot be held harmless. In the interest of justice we do not feel that this conviction should be affirmed. In the trial of criminal cases substantial justice is the end to be obtained, and it is essential that a fair and impartial trial be had and that the instructions of the court be free from errors such as are reasonably calculated to- prejudice the substantial rights of the accused.”

In the case of Minyard v. State, 57 Okla. Cr. 332, 48 P. 2d 864, 869, it was said:

“While it is an established rule of this court that verdicts which receive the approval of the trial judge will not be disturbed when supported by evidence sufficient to malee out the offense charged, however, when the evidence is all carefully considered, and it appears that it is wholly wanting in respect to some essential element of the offense charged, it is not only the province, but the duty, of this court to reverse the judgment.
“No man ought to be convicted of a crime upon mere suspicion, or because he may have had an opportunity to commit it, or even because of bad character, and where circumstances are relied on for a conviction, they ought to he of such a character as to negative every reasonable hypothesis except that of the defendant’s guilt.
“When we recall the presumption that the law always indulges as to the innocence of the defendant, and the necessity of establishing his guilt beyond a reasonable doubt, we think it would have been a proper exercise of the power vested in the trial court to have advised the acquittal of the defendant on the ground that the evidence was insufficient to warrant a conviction.”

We also wish to refer to the motion for new trial filed in this case which has reference to the juror Herbert Bates. Under the authorities and under ordinary circumstances, this error would not be considered sufficient for the reversal of this case, and if it was the only one relied upon we would not reverse the case by reason of the action of the trial court in overruling, the same. But at the time it was presented, the court had before it the whole picture of this case as we have heretofore outlined. It was obvious that something had caused this jury to return a verdict of guilty against this defendant. The court was also aware, as shown by the record, that the codefendant, Huse DeArmond, had been tried immediately following this and in the court over which he was presiding, and that a jury had returned a verdict of not guilty in his case. While we can see how this might happen and under the law would not entitle the defendant to a new trial, yet under the circumstances as shown by this record it occurs to us that the court should have granted the defendant a new trial in this case, and we are now firmly of the opinion that this should be done, and if the county attorney of Mayes county is of the opinion that he has sufficient facts which justify it, he may again try this defendant.

We think that the ends of justice demand it, and it is therefore ordered that the judgment and sentence of ten years in the penitentiary be set aside and that the same be reversed to' the district court of Mayes county for such action as the law and the facts demand.

JONES and DOYLE, JJ., concur.


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    ANDY COX v. STATE.
    No. A-9956.
    April 1, 1942.
    (124 P. 2d 432.)

      Date Crawford and Yol Crawford, both of Ada, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Andy Cox, was charged in the district court of Pontotoc county with the crime of receiving stolen property, was tried, convicted and sentenced to serve two years in the State- Penitentiary and to pay a fine of $250, and has appealed.

It is contended that the evidence is insufficient to sustain the judgment of conviction and that the verdict of the jury is excessive and the result of passion and prejudice.

The proof of the state shows that the defendant and his brother, Marvin Cox, owned and operated a junk yard at Fittstown. Marvin Cox had left to go to Illinois to work in the oil fields in the spring of 1939 and the junk yard continued in operation by the defendant with the assistance of Bill Cox, the 16-year-old son of Marvin Cox.

In the latter part of September, 1939, several joints of two and one-half inch upset oil well tubing, 30 feet long, were stolen from the Simpson-Roodhouse Drilling Company, which had the pipe stored in Fittstown with the Eureka Tool Company. Fifty-seven joints of this tubing had been stolen about the 25th, 26th and 27th of September, 1939. Later, employees of the company, together with an investigator of the Phillips Petroleum Company, found 22 of the stolen joints at the Cox junk yard and 35 joints at the Moran Supply Company at Seminole. Also discovered at the same time in possession of defendant was some tubing which had been stolen from the Phillips Petroleum Company. The junk yard of defendant was about three blocks from the Eureka Tool Company.

Meyer Moran, owner of tbe Moran Supply Company, testified that the tubing that he had in his possession, which was identified as a part of that which had been stolen from the Simpson-Roodhouse Drilling Company and the Phillips Petroleum Company, was bought by him from Sidney Sachs, who operated the Ada Iron & Metal Company.

■Sidney Sachs testified that he bought the tubing from the defendant. He further testified that he bought a considerable amount of pipe and scrap iron from the Cos junk yard in September, 1939 and identified a statement of his account with Cox showing the various transactions during that month, which disclosed that he bought several hundred feet of two and one-half inch tubing. He further testified that he paid Cox 12 cents a foot for the tubing and received from Moran 17 cents a foot. The testimony showed that the secondhand tubing was reasonably worth 25 cents per foot.

Walter Cooper testified that he and Kenneth Gillespie, an 18-year-old boy who worked in a cafe at Fitts-town, had stolen eight joints of Simpson-Roodhouse tubing and sold it to the defendant; that they signed fictitious names to' an invoice handed them by Bill Cox; that the tubing was stolen around midnight on September 26, 1939, and he and Gillespie carried the eight joints to the junk yard of the defendant one piece at a time; that they did not see the defendant the night the tubing was delivered, but that they came back the next morning about 10 or 11 o’clock and the defendant, paid them $8 apiece for the eight joints; that he had lived there at Fittstown five or six years and was “pretty well” acquainted with defendant; that he did not tell defendant the pipe was stolen and doesn’t know whether defendant knew it was stolen or not; that he had sold some pipe to the defendant once before. This witness had entered his plea of guilty to stealing the pipe, but had not been sentenced prior to his testifying in this case.

The proof further showed that the defendant did not furnish the sheriff with a record of this purchase of secondhand oil field equipment, as provided by H. B. 418, Session Laws 1935, O. S. 1941, tit. 52, § 375. When the defendant was questioned at the time the stolen pipe was found in his possession, he showed the officers the invoice signed by the youths who had delivered the pipe to him. This invoice had the fictitious names on it with the address given as Jessie, Okla. Defendant told the officers that the boys who sold the pipe lived at Jessie.

Por the defense it was contended that the pipe in question was bought by Bill Cox, the 16-year-old son of Marvin Cox, from the youths and that the defendant had nothing to do with the transaction and did not know that the pipe was stolen property. Also, there was introduced, on behalf of the defendant, testimony as to his good reputation. On cross-examination of these witnesses it was disclosed that the defendant had been charged and acquitted on a charge of receiving stolen property about a year previous to this occasion.

It is necessary for the state to show in a case of this character that the goods has been stolen and that the party receiving the stolen property had knowledge at the time the property was received that it had been stolen. By this expression it is not meant that it is necessary for the person receiving the same to have actually seen the theft of the property. It is sufficient if the facts are such as to cause an actual belief that the property was stolen. Price v. State, 9 Okla. Cr. 359, 131 P. 1102; Camp v. State, 66 Okla. Cr. 20, 89 P. 2d 378. Applying this test to the case at bar1, we find that the evidence is sufficient to sustain the verdict. While there is no direct testimony that the defendant knew that the tubing which was purchased was stolen, there are sufficient circumstances to convince any reasonable jury that the defendant did have this knowledge.

The youths from whom the property was purchased were not in the oil field business nor in the junk business. The defendant was acquainted with them, although he denies knowing their true names. His failure to file the statement with the sheriff as required by law, showing the details of his purchase, was a strong circumstance against defendant. The manner of delivery of the pipe in the nighttime and the circumstances surrounding payment when no questions were asked by defendant are all facts which are inconsistent with honesty. His possession of other recently stolen property is also a circumstance to be considered in determining the intent.

In the case of Pierce v. State, 54 Okla. Cr. 118, 15 P. 2d 603, it is stated:

“Where defendant receives stolen property under such circumstances that he must have believed that it was stolen, a conviction for knowingly receiving stolen property will not be reversed for want of evidence.”

In Lordi v. State, 47 Okla. Cr. 102, 287 P. 1083, it is stated:

“In a prosecution for receiving stolen property, knowing the same to be stolen, it is not necessary that defendant have actual knowledge that the property was stolen, but it is sufficient, if the circumstances accompanying the transaction were such as to make him believe that it was stolen.”

In the case of Goodwin v. State, 68 Okla. Cr. 381, 99 P. 2d 181, 184, it is; stated:

“Whether an explanation respecting possession of property recently stolen is reasonable or not, is ordinarily a question for the jury the same as any other question of fact.”

It is further contended that the verdict is excessive. In this connection we find that the county attorney did ask many leading, prompting, and improper questions. To many of these questions, no objections were interposed; to other of the questions, objections were properly interposed and sustained. The county attorney went too far in the questions and statements which he asked, and we cannot place our stamp of approval upon his conduct in this regard. However, the punishment imposed by the jury is not so severe, when the nature of the crime is: considered, that this court would be justified in finding that this verdict was the result of passion and prejudice created by the manner in which the county attorney conducted his examination of the witnesses.

Some mention is made in the brief of the defendant concerning the overruling of his motion for a continuance. However, this matter is apparently not seriously argued, for the probable reason that the case-made fails to reflect whether this motion was ever presented, or what disposition was made of the same.

We have carefully considered the whole record; we have no doubt of the sufficiency of the evidence to justify the verdict and have found no error in the record that will warrant this court in disturbing the verdict or in reducing the punishment assessed.

The judgment is affirmed.

BAREFOOT, P. J., and DOYLE, J., concur.


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    MONTIE BRITTAIN v. STATE.
    No. A-9974.
    April 1, 1942.
    (124 P. 2d 429.)
    Ernest Crabtree and P. B. Garland, both of Ada, and Sam J. Goodwin, of Pauls Valley, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Montie Brittain, was charged in the district court of Pontotoc county with the crime of obtaining property by means of a bogus check, jury waived, was tried, convicted and sentenced to serve one year in the State Penitentiary, and has appealed.

Prom the judgment rendered May 27, 1940, an appeal was attempted by filing in this court on November 20, 1940, a petition in error with case-made.

A motion to dismiss the appeal has been filed by the Attorney General, based upon the grounds that no- notice of appeal was served on the court clerk or the county attorney, and no service of summons was had on the Attorney General, nor waiver of service of summons entered by the Attorney General. No> response to the motion to dismiss has been filed.

An examination of the record discloses that the motion to dismiss should be sustained. This question has been before this court numerous times. The most recent case is Thomison v. State, 74 Okla. Cr. 111, 123 P. 2d 697. In that case it was stated:

“Under the statute in force at the time of the attempted appeal herein, an appeal ivas perfected by the service of a notice upon the clerk of the court where the judgment was entered, stating- that the appellant appeals from the judgment, and by the service of a similar notice upon the prosecuting attorney, or the service of a summons in error upon the Attorney General or a waiver of the same. These notices are the prerequisite steps to conferring upon the appellate court jurisdiction to hear and determine the appeal. Lutke v. State, 37 Okla. Cr. 18, 255 P. 719; Austin v. State, 55 Okla. Cr. 278, 28 P. 2d 1113; Erwin v. State, 63 Okla. Cr. 315, 74 P. 2d 1173; Thigpen v. State, 65 Okla. Cr. 134, 83 P. 2d 585.”

It was further held in that case that the amendment was not retroactive and did not affect the validity of an attempted appeal which was lodged in this court prior to the date the amendment became effective. This amendment became effective 90 days after the adjournment of the Legislature. The statement in Thomison v. State that the amendment became effective on June 4, 1941, is erroneous.

For the reasons herein stated, the appeal is dismissed.

BABEFOOT, P. J., and DOYLE, J., concur.


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    TOM STEVENS v. STATE.
    No. A-9953.
    April 1, 1942.
    (124 P. 2d 426.)
    Fred L. Hoyt and Frederick J. Hoyt, both of Oklahoma City, for defendant.

      Mac Q. Williamson, Atty. Gen., J. Walker Field, Asst. Atty. Gen., and Lewis R. Morris, Co. Atty., of Oklahoma City, for the State.
   BAREFOOT, P. J.

Defendant, Tom Stevens, was charged in the district court of Oklahoma county with the crime of “obtaining merchandise by means and use of a false and bogus check”, was tried, convicted and sentenced to serve a term of two years in the penitentiary, and has appealed:

The statute under which defendant was charged isl Oklahoma Statutes 1931, section 2086, Okla. St. Ann. and Okla. Stats. 1941, Title 21, § 1541, and is as follows:

“Every person who, with intent to cheat and defraud, shall obtain or attempt to obtain from any person, firm or corporation, any money, property, or valuable thing, of the value of Twenty ($20.00) Dollars, or less, by means or by use of any trick or deception, or false or fraudulent representation, or statement or pretense, or by any other means or instrument or device commonly called the ‘confidence game/ or by means or use of any false or bogus checks, or by any other written or printed or engraved instrument or spurious coin, shall be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine not to exceed One Hundred ($100.00) Dollars, or by imprisonment in the county jail for not more than thirty (30) days, or by both such fine and imprisonment. If the value of the money, property or valuable thing referred to in the preceding paragraph, be more than Twenty ($20.00) Dollars, any person convicted hereunder shall be deemed guilty of a felony and shall be punished by imprisonment in the State Penitentiary, for a term not exceeding seven (7) years, or by a fine not to exceed Five Hundred ($500.00) Dollars, or by both such fine and imprisonment. The term ‘false or bogus check’ shall include checks or orders given for money or property which are not honored on account of insufficient fundsl of the maker to- pay the same, as against the maker' or drawer thereof, the making, drawing, uttering, or delivering of a check, draft or order-, payment of which is refused by the drawee, shall be prima facie evidence of intent to defraud and the knowledge of insufficient funds in, or credit with, such bank or other depository; provided, such maker or drawer shall not have paid the drawee thereof the amount due thereon, together with the protest fees, within five days from the date the same is presented for payment; and, provided, further, that said check or order is presented for payment within thirty days after same is delivered and accepted.
“The word ‘credit’ as used herein, shall be construed to mean an arrangement or understanding with the bank or depository, for the payment of such check, draft or order.”

A jury was waived by defendant and he was tried before the court.

For reversal it is contended:

“1. That the court erred in overruling the motion for new trial.
“2. That the court erred in refusing to sustain the defendant’s demurrer to the evidence and refusing to- discharge the defendant upon his motion at the close of the state’s evidence upon the grounds that the facts testified to by the state’s witnesses did not constitute sufficient facts to show that the crime charged had been committed.
“3. That the decision of the court is not sustained by sufficient evidence and is contrary to law.”

All of these propositions may be considered together.

This charge was the outgrowth of the purchase by Tom Stevens of the complaining witness, John Marshall, of 89 crates of strawberries on the 15th day of May, 1939, and for which was given a check in the sum of f313.60, drawn upon the First National Bank of Ponca City and which was turned down for insufficient funds and was not paid.

The contention of defendant was, and he so testified, that he had an agreement and understanding with the complaining witness to the effect that he would not have sufficient funds to pay the check without first selling and collecting for the strawberries and depositing the money in the bank. The evidence on the part of the defendant revealed that prior to this transaction defendant had made other purchases of strawberries from the complaining witness and had given checks therefor and that said checks had been paid. Defendant also offered evidence to' show that on May 16, 1939, he deposited in the Ponca City bank the sum of $222.45, on May 17, $140, on May 20, $264.60, on May 27, $35. That the following checks were paid out of said funds: On May 15, $156; May 16, $78; May 20, $134; May 22, $120; May 24, $192. The evidence also showed that there were a number of outstanding checks at the time these deposits were made. The check for $313.60 for which he was charged was presented to the bank on May 19, 1939, and was not paid on account of insufficient funds.

A witness, Ray Adams, who worked for defendant, testified that he was present when the defendant purchased the strawberries and that Mr. Marshall was to hold the check until the defendant sold the berries. Other evidence was offered with reference to an attempt to settle the matter by payment of the check, but the same was never paid.

For the state three witnesses testified. John Marshall, the complaining witness, testified that he lived near Tahlequah and was engaged in truck farming and raising strawberries, and he testified to selling defendant strawberries on at least several different occasions in the early part of 1939 and of seeing defendant on the night of May 14, 1939, and of making arrangements to sell him 100 crates of strawberries on the following morning. He did SO', and the defendant gave him a check for $313.60 on the First National Bank of Ponca City. That he deposited the same for payment and it was returned unpaid and marked insufficient funds. He stated that he had no agreement with defendant that he was to have the right to sell the berries before he was to be paid. That he accepted the check in good faith and expected it to be paid on presentation. That said check was never ■ paid.

The witness Lon Humphrey testified that he lived near the complaining, witness and assisted him in selling his berries. That he had accompanied Mr. Marshall to Oklahoma City upon many different occasions and was present at the time defendant gave this check and other checks to Mr. Marshall. The witness Overstreet testified that he was a banker at Ponca City, and he gave the account of defendant in the bank and testified to the paying of certain checks, and that he turned down the check on account of insufficient funds to meet the same, and that there were other outstanding checks that were unpaid.

From the above statement it will be seen that the evidence was conflicting, and the question of “intent” was a question of fact for the court to decide, this case having been submitted to the court without the intervention of a jury. We have recently had occasion to discuss this statute in the case of Armstrong v. State, 74 Okla. Cr. 42, 122 P. 2d 823. The issues there presented are very similar to the facts here. It is there stated:

“1. Section 2086, O. S. 1931, 21 Okla. St. Ann. § 1541, makes it a criminal offense for any person, with intent to defraud, to' obtain money or anything of value by giving a check on a bank in which he has no funds at the time to meet the same, or which funds are insuf-fieient to pay the cheek. The indorsement of the check by the drawee, ‘insufficient funds,’ is prima facie evidence of the intent to defraud, provided that the drawer did not pay the drawee the amount of the check with protest fees within five days from the date of the presentment thereof for payment, and such presentment is made within 80 days from the date of delivery of the check.
“2. Fraudulent intent is the gist of the offense of obtaining property by means of a bogus check.
“3. Where the state has made a prima facie case against defendant, and the defendant offers testimony that he advised some of the prosecuting witnesses that he had insufficient funds to pay the checks (which is conflicting with testimony of the state), that there was a custom among cattle buyers to' write checks and afterward deposit money to honor them, and that he had received a check to cover the insufficiency of his funds which he intended to1 deposit, but became intoxicated and failed to make the deposit, a question of fact as to defendant’s intent is presented for determination by a jury.
“4. Where there is competent evidence supporting a finding of intent to> defraud, the verdict will not be disturbed because there is some testimony tending to indicate there was no such fraudulent intent.”

Other cases in which this statute had been construed are: Gunther v. State, 42 Okla. Cr. 129, 276 P. 237; Loughridge v. State, 63 Okla. Cr. 33, 72 P. 2d 513; Taylor v. State, 21 Okla. Cr. 351, 207 P. 746; Carr v. State, 21 Okla. Cr. 377, 208 P. 275; Tillery v. State, 23 Okla. Cr. 226, 214 P. 198; Pickett v. State, 35 Okla. Cr. 60, 248 P. 352; Douglas v. State, 15 Okla. Cr. 648, 179 P. 947.

Defendant cites the cases of Taylor v. Territory, 2 Okla. Cr. 1, 99 P. 628, and Helsey v. State, 18 Okla. Cr. 98, 193 P. 50, 17 A. L. R. 197. An examination of these cases reveals that in neither of them was the prosecution under the bogus check statute here involved. All the principles enunciated in those cases are found to1 exist in the case at bar.

For the reasons above stated, the judgment and sentence of the district court of Oklahoma county is affirmed.

JONES and DOYLE, JJ., concur.