author: BAREFOOT, J.

text:
    BUCK v. STATE.
    No. A-10172.
    May 26, 1943.
    (138 P. 2d 115.)

      E.M. Carter and D.E. Ashmore, both of Okmulgee, ■for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., .and Jack Pitchford, Co. Atty., of Okmulgee, for defendant in error.
   BAREFOOT, J.

Defendant, G, R. Buck, was charged in the district court of Okmulgee county with the crime of arson, was tried, convicted, and sentenced to serve a term of two years in the State Penitentiary, and has appealed.

The only contention presented in the brief of defendant is that the evidence is insufficient to sustain the judgment and sentence, and that the court erred in refusing, to direct a verdict of not guilty.

This case may be said to rest almost wholly upon circumstantial evidence. It presents to this court for the first time the question of the admissibility in evidence of the trailing of one by bloodhounds. We find that this question has heretofore been presented to the highest appellate courts of many states, and that some consideration ha,s been given thereto by textbook writers. However, this court has never been called upon to consider the question, although the use of bloodhounds at the State Penitentiary has been in vogue for many years.

An investigation of the authorities has been most interesting and profitable.- The earliest case in this country in which consideration was given to' the question was that of Hodge v. State, 98 Ala. 10, 13 So. 385, 39 Am.St.Rep. 17. In that case the death penalty was upheld, and the evidence of tracking by the dog to defendant’s home was sustained as competent evidence. Since this case in 1893, many courts have passed upon the question, and by the great weight of authority it has been held that the evidence is admissible under certain rules and conditions, as will be hereinafter stated.

Among the states upholding the rule are Alabama, Florida, Iowa, Kansas, Kentucky, North Carolina, South Carolina, New York, Missouri, Ohio, Texas, Mississippi, Georgia, Tennessee, Arkansas and Louisiana; and the following texts are here cited: 16 C.J. 564; 8 E.C.L. 177, 184; 22 C.J.S. Criminal Law, § 646, p. 988', § 646; and Elliott on Evidence.

The states, some of which recognize that in some cases the evidence might be admissible yet refuse to follow the rule are Nebraska, Illinois, and Indiana, and one case from Iowa. Brott v. State, 70 Neb. 395, 97 N.W. 593, 63 L.R.A. 789; People v. Pfanschmidt, 262 Ill. 411, 104 N.E. 804, Ann.Cas.1915A, 1171; Ruse v. State, 186 Ind. 237, 115 N.E. 778, L.R.A. 1917E, 726; State v. Grba, 196 Iowa 241, 194 N.W. 250.

In the early case of State v. Thomas Hall, 4 Ohio Dec. 147, a history of the bloodhound is given as follows:

“It is a matter of common knowledge,and therefore a matter of which courts will take notice, that the breed of dogs known as bloodhounds is possessed of a high degree of intelligence, and acuteness of scent, and may be trained to follow human tracks with considerable certainty and success if put upon a recent trail. In Chambers’ Encye., under the title ‘Bloodhound,’ it is said of this dog, that ‘it is remarkable for its exquisite scent and for its great sagacity and perseverance in tracking any object to the pursuit of which it has been trained;’ that ‘it has been frequently used for the pursuit of felons and deer-slayers, and, in America, for the capture of fugitive slaves;’ and the writer refers to the use of these dogs in border warfare, and to their importation ‘into Jamaica in 1796 to be used in suppressing the Maroon insurrection, but the terror occasioned by their arrival produced the effect without their actual employment.’ The Encyc. Britannica (9th Ed.) under the title ‘Bog,’ bears this testimony to the wellknown traits of this animal: ‘The bloodhound is remarkable for its acuteness of scent, its discrimination in keeping to the particular scent on which it is first laid, and the intelligence and pertinacity with which it pursues its object to- a successful issue. These qualities have been taken advantage of not only in the chase, but also in the pursuit of felons and fugitives of every kind. According to Strabo, these dogs were used in an attack upon the Gauls. In the clan feuds of the Scottish Highlands, and in the frequent wars between England and Scotland, they were regularly employed in tracking fugitive warriors, and were thus employed, according to early chroniclers, in pursuit of Wallace and Bruce. The former is said to have put the hound off the scent by killing a suspected follower, on whose corpse the hound stood. For a similar purpose captives were often killed. Bruce is said to have baffled his dogged pursuer as effectually, though less cruelly, by wading some distance down stream, and then ascending a tree by a branch which overhung the water and thus breaking the scent. In the histories of border feuds these dogs constantly appear as employed in the pursuit of enemies, and the renown of the warrior was great, who,
“ ‘By wily turns and desperate bounds,
Had baffled Percy’s best bloodhounds.’
“In suppressing the Irish rebellion in the time of Queen Elizabeth, the Earl of Essex had, it is said, 800 of these animals accompanying the army. * * *
“Both history, therefore, and natural history testify to the exceptional keenness of scent and capacity for training of this variety of hound. Whatever may be said of the wisdom or humanity of resorting to this means of detecting and securing the apprehension of criminals, there can be no doubt, that, where a well trained dog is set upon a recent track and follows it, in the usual manner of such dogs in following a trail, up to the person or home of the accused, these facts may, on the plain principles governing circumstantial evidence, be shown as tending to connect him with the crime charged. It was SO' held in the case of Hodge v. State, 98 Ala. 10 [13 So. 385], 39 Am.St.Rep. 17, which is the only case I have found directly in point.
“Of course, in such cases full opportunity should be given to inquire into the breeding, training and testing of the dog, and to all the circumstances attending the trailing in the case on trial, and to the manner in which the dog then acted and was handled by the person having it in charge. The weight to be given to the tracking as evidence against the accused will depend largely upon these matters.”

Also, in the case of Blair v. Commonwealth, 181 Ky. 218, 204 S.W. 67, 68, in which a beautiful tribute is paid to the dog, where it is said:

“It is next insisted that the court should have sustained appellant’s objection to the testimony relating to the trailing of Blair and Crump by two bloodhounds immediately after the offence was committed. The former opinion reiterated the rule upon that subject first announced in this state in 1898, in Pedigo v. Commonwealth, 103 Ky. 41, 44 S.W. 143, 19 Ky.Law Rep. 1723, 42 L.R.A. 432, 82 Am.St.Rep. 566, holding such testimony to be competent when properly guarded. The rule may now be said to be thoroughly established in this jurisdiction. Denham v. Commonwealth, 119 Ky. 508, 84 S.W. 538, 27 Ky.Law Rep. 171; Sprouse v. Commonwealth, 132 Ky. 269, 116 S.W. 344. And it cannot be said that the doctrine isl wholly a novel one.
“If we may credit Sir Walter Scott, such evidence was looked upon with favor as early as the twelfth century. In the Talisman it is related that in the joint crusade of Richard I of England and Phillip II of France, Roswell, the hound, pulled from the saddle Conrade, Marquis of Montserrat, thus mutely accusing him of the theft of the banner of England. Phillip defended the Marquis with the remark:
“ ‘Surely the word of a knight and a prince should bear him out against the barking of a cur.’
“To which Richard replied:
“ ‘Royal brother, recollect that the Almighty who gave the dog to be companion of our pleasures and our toils, both invested him with a nature noble and incapable of deceit. He forgets neither friend nor foe; remembers, and with accuracy, both benefit and injury. He hath a share of man’s intelligence, but m> share of man’s falsehood. You may bribe a soldier to< slay a man with his sword, or a witness to take life by false accusation; but you cannot make a hound tear his benefactor; he is the friend of man save when man justly incurs his enmity. Dress yonder Marquis in what peacock robes you will, disguise his appearance, alter his complexion with drugs and washes, hide himself amidst a hundred men; I will yet pawn my scepter that the hound detects him, and expresses his resentment, as you have this day beheld.’
“The doctrine of the admissibility of bloodhound evidence in criminal prosecutions has been slowly gaining ground during the past 20 years. See Hodge v. State, 1893, 98 Ala. 10, 13 So. 385, 39 Am.St.Rep. 17; Parker v. State, 1904, 46 Tex.Cr.R. 461, 80 S.W. 1008, 108 Am.St.Rep. 1021, 3 Ann. Cas. 893; State v. Dickerson, 1907, 77 Ohio St. 34, 82 N.E. 969, 13 L.R.A.,N.S., 341, 122 Am.St.Rep. 479, 11 Ann.Cas. 1181; State v. Hunter, 1907, 143 N.C. 607, 56 S.E. 547, 118 Am.St.Rep. 830; State v. Freeman, 1908, 146 N.C. 615, 60 S.E. 986; Spears v. State, 1908, 92 Miss. 613, 46 So. 166, 16 L.R.A.,N.S., 285.
“The general rules deductible from these decisions are as follows:
“(1) The bloodhound in question must be shown to have been trained to follow human beings by their tracks and to have been tested as to its accuracy in trailing upon one or more occasions; and,
“(2) The evidence of the acts of bloodhounds in following a trail may be received merely as circumstantial or corroborative evidence against a person towards whom other circumstances point as being guilty of the commission of the crime charged.
“The admission of this class of evidence is therefore hedged about with abundant safeguards in the way of other and human testimony; and as long as these rules are adhered to bloodhound evidence is no more dangerous than any other class of circumstantial evidence.
“In Kentucky it is settled that testimony as to trailing by bloodhounds of one charged with crime may be permitted to go to the jury for what it is worth, as one of the circumstances which may tend to connect the defendant with the crime only after it has been shown by some one having personal knowledge of the facts: (a) That the dog in question is of pure blood and of a stock characterized by acuteness of scent and power of discrimination; (b) is itself possessed of these qualities and has been trained or tested in the tracking of human beings; and (c) that the dog so trained and tested was laid on the trail, whether visible or not, concerning which testimony has been admitted, at the point where the circumstances tend clearly to show that the guilty party had been, or upon a track which such circumstances indicated had been made by him.”

Prom a reading of the many cases above cited, and the texts, it may be said that the following conclusion has been reached with reference to the introduction of this character of testimony.

It is the better practice before this evidence is permitted to- go to the jury that the court should first hear the evidence to ascertain the blood, age, training and experience of the dog, and whether it has been trained to follow trails of human beings by their tracks, and as to accuracy of trailing upon different occasions. The court then determines as a matter of law whether the evidence is such that permits its submission to the jury. If the court decides that the facts justify its submission, the jury is returned and all of the evidence in connection therewith, together with the expert testimony as to the training, blood, and experience of the dogs, is submitted to them under proper instructions of the court.

The case of Pedigo v. Commonwealth, 103 Ky. 41, 44 S.W. 143, 145, 42 L.R.A. 432, 82 Am.St.Rep. 566, above mentioned, is. a leading case and is cited by many of the authorities. In the opinion it is said:

“After a careful consideration of this case by the whole court, we think it may be safely laid down that, in order to make such testimony competent, even when it is shown that the dog is of pure blood, and of a stock characterized by acuteness of scent and power of discrimination, it must also be established that the dog in question is possessed of these qualities, and has been trained or tested in their exercise in the tracking of human beings, and that these facts must appear from the testimony of some person who has personal knowledge thereof. We think it must also appear that the dog so trained and tested was laid on the trail, whether visible or not, concerning which testimony has been admitted, at a point where the circumstances tend clearly to show that the guilty party had been, or upon a track which such circumstances indicated to have been made by him. When so indicated, testimony as to the trailing by a bloodhound may be permitted to go> to the jury for what it is worth, as one of the circumstances which may tend to connect the defendant with the crime of which he is accused.”

There is a strong dissenting opinion in this case, and it is cited by the authorities holding to the contrary view, and especially in the case of Brott v. State, 70 Neb. 395, 97 N.W. 593, 63 L.R.A. 789, which is the leading case upholding the doctrine that bloodhound testimony is inadmissible under any circumstance, holding that it is hearsay testimony, and unworthy of belief.

In the early case of Parker v. State, 46 Tex.Cr.R. 461, 80 S.W. 1008, 1010, 108 Am.St.Rep. 1021, 3 Ann.Cas. 893, the Court of Criminal Appeals of that State in a ■ murder case depending upon circumstantial evidence said:

“Appellant complains of the action of the court receiving the following testimony, over his objections: W. D. Snodgrass was introduced as a witness for the state, and in substance stated that he was constable of precinct No. 1 of Titus county, Tex., and when he heard of the homicide he went over to where it occurred, and carried Sam Porter’s dog; that this dog was kept for the purpose of running people, and was a bloodhound; that he had had experience with this dog, and it had been trained and reliable; that if he was taken to a place, and put on the track, and if ever opened on the track, he would run that track to its destination, and he would run no other track except that particular track; after he run said track to its destination he could be put on another track; that he was present when the dog was put on the track at the scene of the killing ; that he kept up with him a part of the way, but he ran so fast he could not keep up all the way; that when he got to where appellant lived the dog was there. Appellant objected to that part of the evidence where the witness testified that the dog would keep the track; that he would run it till he reached its destination — because said evidence was necessarily the expression of the witness’ opinion in the matter, about which he could give no opinion. Appellant also objected to- the acts of the dog running the track, on the ground that said evidence was immaterial, irrelevant, hearsay, and a matter wholly disconnected from the defendant, and was a transaction that occurred when defendant was not present, and one for which he could not be bound. The court, in overruling the objections, explained that the witness said he had seen this dog tried often, and he spoke from experience with the .dog. With reference to the last proposition— that is, whether testimony is admissible that the dog took a certain track, and trailed it to appellant’s house — we would observe that — so far as we are advised, the authorities are not numerous. Such testimony, however, has been held admissible in Alabama and Kentucky, and perhaps other states. See Hodge v. State, 98 Ala. 10, 13 So. 385, 39 Am.St.Rep. 17; Simpson v. State, 111 Ala. [6] 7, 20 So. [572] 573; Pedigo v. Commonwealth, 103 Ky. 41, 44 S.W. 143, 42 L.R.A. 432, 82 Am.St.Rep. 566. In the latter case the court, citing two other cases, bases its opinion as to the admissibility of such' evidence upon our common knowledge and experience with reference to- the qualities, of trained dogs of certain pure breeds, and that such evidence is admissible, in connection with other circumstances, as a fact o-r circumstance tending to- connect a party with a crime. * * * It occurs to us that the reason for the admissibility of such testimony is founded upon correct logic. It is a matter of common knowledge and observation that trained animals of the hound species are capable of trailing and following tracks of human beings, and they have been used time out o-f mind fo-r that purpose. Here, according to the testimony of the witness, the track assumed to- be that o-f the supposed murderer, and which the circumstances in evidence tend to show was. his track, was pointed out to the do-g.- He trailed this track from where it was pointed out to him to- the residence of the defendant, some mile and a half; and the course of his pursuit of the track wa.s followed by witnesses who- testified in the case, and they show that the do-g followed this track which they saw upon the ground, and which they described to the jury. We hold that this character of testimony is admissible.”

In the case of State v. Rasco, 239 Mo. 535, 144 S.W. 449, 458, it is said:

“It is now urged upon the court that testimony of this character is so unreliable that it should not have been admitted in‘any event, and, further, that the preliminary testimony was not sufficient to show the hounds were qualified. We have examined this question with a good deal of attention, both as to' the facts in evidence and as to the law. It is a novel question in this state, but has been the subject of adjudication in other jurisdictions. The Supreme Court of Nebraska has ruled against the admission of evidence of the character in question, on the ground that it is intrinsically unreliable. Brott v. State, 70 Neb. 395, 97 N.W. 593, 63 L.R.A. 789. In our judgment, what is said in that case goes to the weight rather than to the competency of the evidence. It is a fact beyond controversy that dogs, in common with many others of the lower animal species, possess a sense of smell developed to a degree which is almost beyond our ■ comprehension. In many cases this sense of smell is their chief protection against enemies. Hunters fully appreciate this fact in attempting to approach wild game. It is a fact also, abundantly demonstrated, that dogs can and have followed with accuracy unseen, blind, and intricate trails, guided only by the sense of smell. It has been further demonstrated that pure-bred bloodhounds possess in high degree the power to follow the trail of a human being over long distances. Measured by the usual standards applied to the admissibility of testimony, we must concede that the actions of a properly bred and trained bloodhound, when set upon the trail of a human being, are competent evidence as tending to show the direction and distance followed by such person along such trail, and the point where it ends. We cannot demand absolute assurance of the impossibility of error as a test for the reception of testimony. We must depend largely upon the law of probabilities. The courts of many states^ including Alabama, Florida, Iowa, Kansas, Kentucky, North Carolina, Ohio, and Texas-, have ruled such evidence admissible, upon a sufficient preliminary showing being made as to the breeding, capacity, training, and experience of the hounds. Aside from the Nebraska case above referred to, the decisions- are practically unanimous for the admission of the testiimony. There is not an important feature presented in the case *at bar that has not been ruled upon in one or more of these decisions.
“It is strongly urged by the defendant that the great number of visitors upon the premises must have so confused and obliterated the footprints as to' make it highly improbable that the hounds could pick up and follow any particular trail; also, that after so long a time (some 16 or 18 hours intervening between the killing and the arrival of the hounds) the scent would have become seriously impaired or lost altogether.
“In the case of State v. Dickerson, 77 Ohio St. 34, 82 N. E. 969 [13 L.R.A.,N.S., 341], 122 Am.St.Rep. 479, 11 Ann. Cas. 1181, the hounds arrived the day after the body of deceased ivas found, and in the meantime ‘very many people, old and young, had trodden upon and over this scene.’ The court ruled that these facts went to the weight of the testimony only. The Dickerson case treats of the question of admissibility of bloodhound evidence very exhaustively, and discusses at length the cases theretofore decided, and deduces from their consideration the following rule: ‘We think that, from a comparison of the views expressed by the different courts from which wre have quoted, there may be deduced a rule which, until shown untrustworthy, may be followed in cases where this class of evidence is offered. It is apparent that, before the- acts and conduct of the dog can be shown, a proper preliminary foundation must be laid, and to establish such foundation it must be shown that the particular dog used! was trained and tested in tracking human beings, and by experience had been found reliable in such cases; that the dog so trained was laid on the trail, whether it was- visible or invisible, at the point where the circumstances tended clearly to show that the guilty party had been, or upon a track which the circumstances indicated to have been made by him. In addition to this, the reliability of the dog must be proved by a person or persons having personal knowledge thereof. This foundation may be strengthened by proof of pedigree, purity of blood, or the exalted standing of his breed in the performance of such peculiar'1 work.’ ”

This case sets out in full instructions given by the court to the jury, and which go very much into detail, more so than in the instant case, but the principles there announced are such as show how this evidence should be considered by the jury.

■See, also, the following cases: Hodge v. State of Alabama, 98 Ala. 10, 13 So.385, 39 Am.St.Rep. 17; Pedigo v. Commonwealth, 103 Ky. 41, 44 S.W. 143, 42 L.R.A. 432, 82 Am.St.Rep. 566; State v. Hall, 4 Ohio Dec. 147; Parker v. State, 46 Tex.Cr.R. 461, 80 S.W. 1008, 108 Am.St.Rep. 1021, 3 Ann.Cas. 893; Blair v. Commonwealth, 181 Ky. 218, 204 S.W. 67; Brummett v. Commonwealth, 263 Ky. 460, 92 S.W. 2d 787; State v. Adams, 85 Kan. 435, 116 P. 608, 35 L.R.A.,N.S., 870; State v. Netherton, 133 Kan. 685, 3 P. 2d 495; Hargrove v. State, 147 Ala. 97, 41 So. 972, 119 Am.St.Rep. 60, 10 Ann.Cas. 1126; McDonald v. State, 145 Ark. 581, 224 S.W. 976; Holub v. State, 116 Ark. 227, 172 S.W. 878; State v. Steely, 327 Mo. 16, 33 S.W. 2d 938; State v. Freyer, 330 Mo. 62, 48 S.W. 2d 894; West v. State, 150 Ark. 555, 234 S.W. 997; State v. Rasco, 239 Mo. 535, 144 S.W. 449; Copley v. State, 153 Tenn. 189, 281 S.W. 460; Adams v. State, 149 Ark. 669, 235 S.W. 372; State v. Dickerson, 77 Ohio St. 34, 82 N.E. 969, 13 L.R.A., N.S., 341, 122 Am.St.Rep. 479, 11 Ann.Cas. 1181; People v. Whitlock, 183 App.Div., N.Y., 482, 483, 171 N.Y.S. 109; State v. Harrison, 149 La. 83, 88 So. 696; State v.King, 144 La. 430, 80 So. 615; State v. Freeman, 146 N.C. 615, 60 S.E. 986; Aiken v. State, 16 Ga.App. 848, 86 S.E. 1076; State v. McLeod, 196 N.C. 542, 146 S.E. 409; Tomlinson v. State, 129 Fla. 658, 176 So. 543; Harris v. State, 143 Miss. 102, 108 So. 446; Hinton v. State, 175 Miss. 308, 166 So. 762; and cases to the contrary: Brott v. State, 70 Neb. 395, 97 N.W. 593, 63 L.R.A. 789; People v. Pfanschmidt, 262 Ill. 411, 104 N.E. 804, Ann. Cas, 1915A, 1171; Ruse v. State,186 Ind. 237, 115 N.E. 778, L.R.A. 1917E, 726; State v. Grba, 196 Iowa 241, 194 N.W. 250.

Having reached the conclusion that the evidence of the trailing of a human being by bloodhounds which have been found to be of proper breeding and properly trained, as above outlined, is supported by reason, and the great weight of authority, we come to apply this law as to the facts in the instant case and with the burning of a barn owned by Jessie Reavis in Okmulgee county, on August 22, 1938.

Defendant lived less than a mile from the home of Mr. Reavis. On the morning of August 22, 1938, Mr. Reavis was awakened about 4 o’clock and discovered hid bam was on fire. It with all the contents burned to the ground. He immediately telephoned the sheriff of Okmul-gee county, requesting that he at once secure bloodhounds from the State Penitentiary and come to his premises. Two men, M. I. Stokes and Hubert Wilson, came from the penitentiary, bringing with them “Old Boston,,” and “Diana,”' and with the sheriff of Okmulgee county reached the home of Mr. Reavis around 10 o’clock in the forenoon, about five and a half hours after the fire was discovered. No one had been permitted to go near the bam until the sheriff and party arrived with the dogs. The dogs were turned loose, and Immediately began to look for tracks. Soon “Old Boston” took up a trail, lea,ding toward a dry branch, and was soon joined by “Diana.” They followed this trail but lost the same, and picked it up again at the top of the creek bank, following it some distance until they came to a fence. The sheriff, Mr. •Stokes, and Mr. Wilson followed the dogs to. this point and here discovered where a horse had been recently tied to a tree, and from an examination they determined that the horse had been there for something near an hour and a half. They examined the tracks of the horse and found that it was unshod and that one hoof made a very peculiar track. The horse had traveled through high weeds and grass from this point, and the dogs would not trail the horse, only when the body of the person riding had come in contact with the weeds or grass, and Mr. Stokes could tell by the “yelp” of “Old Boston,” when he contacted the trail in this manner. The officers followed the tracks of the horse some distance to where it entered a gate near defendant’s home. The dogs here gave evidence of finding the trail which they had been following, evidently when the person dismounted to open the gate. The footprints of the horse were followed to the premises, and the sheriff there found a horse which was wet with sweat, showing evidence of having been recently ridden. One hoof of this horse revealed that it was the horse that had made the track they-had been following from the tree where it had been tied. He also* found a saddle blanket damp with sweat.

The officers ascertained that defendant, who lived at the premises where the horse .was found and to where the dogs had gone, was not at his home. The dogs- were then turned loose near the house, and soon took up a trail which they followed to a house where the brother-in-law of defendant lived. They were there informed that defendant had gone to> the town of Mounds. They returned with the dogs to near the home of defendant, ¡and awaited his return. In the afternoon defendant was seen coming towards his home, walking. His wife went to’ meet him. The dogs were taken to the point where defendant was seen and when turned loose took up the trail direct to defendant’s home.

It may be here stated that in all of the cases above cited, it is the unanimous statement of all the trainers of bloodhounds that when they are placed upon an individual trail, they will never’ quit that trail until they are called off, and again put upon some other trail. They will trail where many persons: have been and other tracks made, but they will not leave the tracks of the party whose trail they are following. A reading of the cases cited will well illustrate this statement.

In a number of cases heretofore cited, and which follow the rule that the evidence is admissible as a circumstance to be considered by the jury, together with the other evidence in the case and under proper instructions from the court, we come to the consideration of the other evidence offered by the state in the instant case. As before stated, it is almost wholly circumstantial.

The facts relied upon by the state to corroborate the evidence of the bloodhounds are, (a) the tracking of the horse by means of the peculiar track or hoof, from the point where it had been tied, to defendant’s lot, and finding the horse therein; (b) the evidence that the horse had been recently ridden and showed wet sweat; (c)the finding of the saddle blanket which also showed that it had recently been used; (d) certain statements made by defendant a,t first denying to> the officers that the horse had been ridden by him that morning, and later testifying at the preliminary hearing that he had ridden the horse that morning about a quarter of a mile, to get the mail; and (e) the testimony of James Brown, a neighbor.

James Brown testified that he lived near defendant and Mr. Reavis, and had known them both for a number of years. That some time in February, 1937, he was working on a fence and the defendant rode up and the following conversation took place:

“He said, ‘How are you and your friend Reavis getting along?’ I said, ‘All right, as far as I know.’ I said, ‘I tend! to my own business and he tends to his.’ I said, ‘That is, at least he aint tending to my business that I know anything about,’ and he said, ‘Wouldn’t it be funny if somebody would catch them gone and slip in there and bum everything they had to the ground?’ I told him no', I didn’t think it would be very funny.’'

The defendant offered evidence attempting to show that this witness was mentally incapable of testifying. This, however, was a question for the consideration of the jury, they had the opportunity to see the witness and to know what consideration should be given to his testimony by reason of any physical conditions.

There Avas also some evidence offered to show a feeling of enmity between defendant and the prosecuting witness, which was not very strong.

The evidence with reference to the history, qualification and experience of the dogs was given by the witness M. I. Stokes. He testified that he was employed by the State of Oklahoma at the State Penitentiary at McAlester. That he had charge of the dogs, about 15 or 20 in number. That the witness Hubert Wilson was a trusty at the penitentiary who had been appointed to assist him in handling the dogs. That the Avitness had had 15 or 20 years’ experience in the handling of dogs. That he had been at the State Penitentiary at McAlester in this capacity for about three years, and that the two dogs which he brought to Okmulgee on the 22nd of August, 1938, were “Old Boston,” and “Diana.” That he selected them as his two best dogs- from a pack of 15 or 20. “Old Boston” was nine years old and “Diana”' a younger dog. He testified at length as to the experience and training which these dogs had received, and especially “Old Boston,” and gave individual instances oil performances by him in the trailing of human beings. He testified:

“Q. And they can distinguish between the smells of human beings? A. I will answer that question like this, it has been my experience with bloodhounds, with a trained bloodhound, they have an instinct, we call it, I call it a sense to' trail a man better than any other dog would trail anything else, and apparently they have an instinct that will enable them to carry a trail through places that apparently other dogs couldn’t carry it at all, and they always know one track from the other. It is impossible for you to cause them to change tracks, they won’t do1 that. Q. You mean, if he is a well trained and experienced bloodhound, if he starts on the track of one human being, he will stay with that particular track? A. He will trail no other track than that. It is impossible to- get him to change tracks. * * * Q. Does it make any difference whether the trail is fresh or cold? A. Those two1 dogs I had there would trail a 24 hour track. I have known them to do jthat. They wouldn’t trail as fast as one we call warmer, fresher track, you understand, but those dogs would trail a, ten or twelve hour track and move right along with it; but a four or five hour track is nothing at all for them. Q. Would that be considered a comparatively fresh trail? A. It certainly would. Q. Now then, you used Old Boston as the lead dog, did you? A. Yes, sir. However, we had this Diana there, one of the greatest dogs I ever knew and one of the most accurate dogs. Q. Did you select those two dogs out of a kennel of how many dogs? A. We had 15 or 20 dogs, but on all special occasions I used those two dogs because they were the best I had and the best I ever saw. Q. Let’s take, for instance, Old Boston, I understand he has since died, since the trailing of this track up there? A. Yes, sir. Q. When did] she die? A. Boston died, I think, about a month after I left down there. Q. To refresh your' memory, was it sometime in March, 1939? A. Bight along then, yes, sir. Q. And what age dog was she? A. Boston was about nine years of age. Q. Was that dog owned by the State of' Oklahoma.? . A. Yes, sir. Yes, she was owned by the state. Q. How long were you its keeper or trainer? A. Boston, individually? Q. Yes. A. I only ran Boston about two and a half years. I used him some several years before that when they first got him from Texas. That was before I went to Granite. Q. What age dog . was he, if you know, when he was brought to Oklahoma? A. He was said to be about three years of age. Q. Have you ever seen him on a man’s trail? A. Yes, several hundred. * * '* Q. Did you ever know Old Boston to lie on any trail? A. I never knew him to make a mistake. * * * A. I would have to answer that question like this, that this Master Mind dog of Pennsylvania has a greater reputation than Boston': Boston was considered the second dog in the United States at that time.”

f

He then testified to the individual work of these dogs in many cases that came under his personal observation, and where they had successfully tracked human beings, and then testified as to the instant case as «above related. On cross-examination he Avas asked:

“Q. There hasn’t been any monument or any money or anything appropriated to build a monument to Boston since he died? A. I don’t know. There ought to« be.”

In view of this testimony, Ave have decided that the tribute to the hound by Bichard I of England, as above quoted, shall be a monument or tribute to “Old Boston,” and for this reason we perpetuate his name in the law-hooks of this state. Though the state has not erected a monument to his memory, his services will ever he remembered, not only in the instant case but others.

As above stated, the evidence in this case is almost wholly based upon circumstantial evidence, and while we recognize the rule announced in the decisions which have been cited, that a conviction will not be upheld upon the evidence alone of trailing by bloodhounds, yet that evidence being competent as a circumstance, together with the other evidence in the case, where competent proof has been given as to the qualifications, training and experience of the bloodhounds used, as in the instant case, this testimony together with the other evidence in the case presented a question of fact for the jury to pass upon as to the gttilt or innocence of the defendant.

There can be no' question but that the evidence as to the training and experience of the two dogs, and especially “Old Boston,” was such that it entitled the court to submit it tO' the jury for their consideration, together with the other facts and circumstances, and under the law we cannot say that the verdict of the jury should be set aside.

We have, therefore, reached the conclusion that the judgment and sentence of the district court of Okmulgee County sliould be affirmed.

JONES, P. J., and DOYLE, J., concur.


source: Caselaw Access Project

author: JONES, P. J.

license: Public Domain

text:
    T. C. BALDING v. STATE.
    No. A-10275.
    May 26, 1943.

      (138 P. 2d 132.)

      W. H. Cooper, of Anadarko, and Walter Hubbell, of Walters, for plaintiff in error.

      Mac Q. Williamson, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, T. C. Balding, was charged by the information in the district court of Caddo county with the crime of rape in the first degree, was tried, convicted and sentenced to serve 15 years in the State Penitentiary, and has appealed.

The defendant at the time of the alleged offense was a teacher in the eighth grade at the Bridgeport school and also director of the band. The prosecutrix was 13 years old at the time of the alleged assault and one of the pupils in certain classes taught by the defendant.. The alleged act, according to' the prosecutrix, occurred between 2 and 3 o’clock p.m. on January 24, 1941, in a room adjacent to the superintendent’s office in the Bridgeport school building.

One of the assignments of error is that the evidence of the state is Avholly insufficient to sustain the judgment of conviction.

We shall not undertake to give a revieAV of the evidence for the reason that on account of error in the proceedings, which Avill be hereinafter discussed, it is necessary that this case be reversed for a new trial. It is sufficient for us to state that although the evidence of the defendant, if believed by a jury, shoAvs that it was wholly impossible for the defendant to have committed the crime at the time and place related by the prosecutrix, yet the testimony of the prosecutrix is coupled with enough circumstances that the issue became one for the determination of a jury under proper instructions. We shall not substitute our judgment for that of a jury, who heard the testimony and was able to observe the demeanor of the witnesses and were in. a better position to judge as to tbeir truthfulness than the members of this court.

It is next insisted that the court erred in admitting in evidence an alleged confession of defendant made on the 29th day of January, 1941, while locked in the basement of the school building, in the presence of H. A. Simmons, superintendent of schools, and the three members of the school' hoard, one of which was the deputy sheriff; the said alleged confession being the result of and procured by force and violence; and further erred in admitting in evidence a statement dictated by the said H. A. Simmons on the same date about two hours after the assault made upon the defendant in the basement of the school building, which said alleged confession was given as a result of threats and promises of reward.

At the time this case was set for oral argument, the Assistant Attorney General who appeared on behalf of the state stated in open court that he was of the opinion that the court committed reversible error in admitting in evidence these twee alleged confessions; and that this court should, for that reason, reverse and remand the case for a new trial. No further appearance has been made by the state in this cause and no brief was; filed in opposition to the very excellent brief presented on behalf of the defendant.

There is little dispute as to the facts surrounding the giving of the two alleged confessions. The school board members, the superintendent, and the defendant all testified concerning the occurrences at the time the first alleged confession was given. The defendant was taken to the basement of the school building by the superintendent. There he was confronted by the three school board members, one of whom was the local deputy sheriff. The superintendent, a much larger man than defendant, accused defendant of raping the Peck girl fire days previous to that time. The defendant first denied the accusation. The superintendent stated “You did too”, to which the defendant replied “I did not.” After the second denial the superintendent struck the defendant a hard blow on the side of the head with his fist, breaking the skin and knocking the defendant back against the wall. After this blow was struck he again accused the defendant and the defendant again denied the charge. The superintendent then struck him another severe blow just above the ear, again breaking the skin and causing his ear to bleed. After this blow was struck the superintendent again stated: “You know you did it”, to which! the defendant replied “Yes.”

Immediately after the giving of this alleged confession the defendant was loaded into the car of the superintendent and brought to the State Capitol allegedly for the purpose of having his certificate to teach school revoked.' When the defendant first entered the superintendent’s car, the superintendent had told him that the father of the little girl was collecting a mob, and that he, the superintendent, wanted to get him awa,y as quickly as possible. After arriving at Oklahoma City the superintendent dictated and the defendant wrote a statement addressed to the State Board of Education in which the defendant said he was guilty of the crime of rape and was asking that his certificate to teach school be revoked.

According to the testimony of the defendant the superintendent said that he would send him to the penitentiary if he did not sign the statement, but that if he would sign the statement it would be used only for the purpose of getting his license to' teach revoked and that nothing further would be done about the case if the defendant would leave the town of Bridgeport. No one was present when the statement was written except defendant, the superintendent and the deputy sheriff. It is undisputed that after the defendant signed the written statement at Oklahoma City he was released and returned home, took his wife and baby and left Bridgeport for the town of Walters, where he Avas arrested the next afternoon. The superintendent admitted when testifying concerning thi¡3 last transaction that he threatened the defendant with the penitentiary if he did not sign the confession, but that he did not threaten him Avith physical violence at that time.

The defendant was arrested in the evening of the following day after his return from Oklahoma City. The county health doctor testified that he was called to the jail to examine the defendant shortly after he was incarcerated and found the defendant suffering from a contusion or bruise on the side of his head and complaining of severe headaches. That he prescribed hot applications for the injury.

Alter hearing the evidence concerning the two alleged confessions, the trial court admitted them in evidence, but instructed the jury that if they should find from the evidence that the statements were involuntarily made that they should disregard them.

Where the competency of a confession is challenged on the ground that, if made, it was not voluntary, its admissibility is primarily a. question for the court. In the absence of the jury, the court should hear the evidence offered respecting the facts and circumstances attending such alleged confession, and the burden is on the defendant to show that it aaus procured by such means or under such circumstances as to render it inadmissible, unless the evidence on the part of the state tends to show that fact. Jf it is held competent, and proof of the same admissible, the defendant is entitled to have the evidence in regard to the facts and circumstances under which it was made given anew to the jury, not that the jury may pass upon its competency or admissibility, but for the purpose of enabling them to judge what weight and value should be given to it as evidence, and the jury may disregard it if they are not satisfied that it was- voluntarily made. Pressley et al. v. State, 71 Okla.Cr. 436, 112 P. 2d 809.

If there had been a dispute in the testimony of the defendant and the other parties who heard the alleged confession as to the occurrences just preceding the giving of the statement, there would have been some ground for the action of the court in admitting the confession in-evidence and then allowing all of the facts and circumstances surrounding such alleged confession to go to the jury for such weight as evidence as they might see fit to give it. However, here all the witnesses admit that the defendant was taken to a locked room in the basement of the school building by his superior and was there struck until he allegedly confessed his guilt.

In the case of Williams v. State, 65 Okla. Cr. 336, 86 P. 2d 1015, 1018, we find the following:

“Extrajudicial confessions are those which are made by the defendant out of court, whether to an official or nonofficial person. It is elementary law that such confessions, in order to be admissible, must be entirely free and voluntary. The rule is well established that confessions induced by a promise of benefit or a threat of harm, made to the defendant by a prosecuting attorney or an officer having him in custody, or by anyone having authority over him, or made by a private person in the presence of one whose acquiescence may be presumed, will be deemed involuntary, and will be inadmissible as evidence. Miller v. State, 13 Okla. Cr. 176, 163 P. 131, L.R.A. 1917D, 383...
“Bishop says:
“ ‘The doctrine, in its essence and divested of its technicalities, is that a defendant’s confession is admissible in evidence against him if made freely and without the hope of benefit to his cause; otherwise it is rejected, since its purpose may have been to secure such benefit rather than to disclose the truth.’ Bish. New Cr. Proc. par. 1217.
“As Mr. Wharton has well said:
“ ‘The real question is whether there has been any threat or promise of such a nature that the prisoner would be likely to tell an untruth from the fear of the threat, or hope of profit from the promise.’ Wharton, Cr. Ev. § 658.”

Involuntary confessions are rejected for two' reasons. The first is that to secure a confession from a defendant either through threats or promises violates the constitutional provision protecting a person against being forced to give evidence which will tend to- incriminate him (Constitution, article 2, sec. 21) ; secondly, because they are testimonially unreliable and untrustworthy.

In Coleman v. State, 70 Okla. Cr. 246, 104 P. 2d 1004, 1008, 105 P. 2d 431, it is held:

“A confession in order to be admissible must be free and voluntary. It must not be extracted by any sort of threats of violence, nor obtained by any direct or implied promises, nor by the exertion of any improper influences.” See, also, Mays v. State, 19 Okla. Cr. 102, 197 P. 1064; Taylor v. State, 27 Okla. Cr. 165, 225 P. 988.

It is our conclusion, in accordance with the foregoing authorities, that both of these alleged confessions were involuntarily made and should not have been received in evidence. The proof is not so strong as to the involuntary character of the second confession, but it was made within two hours after the first confession was: made and while the defendant admittedly was still bleeding from: the wound in his ear. It is apparent from the testimony of the superintendent that when the defendant was holding the written statement in his hand and before he signed and delivered it to the superintendent, in response to the inquiry of the defendant, “How do I know you are not going to use this to try to send me to the penitentiary?”, the superintendent replied “You can tear it up if you want to, but if you do we will send you to the penitentiary.” It is apparent also that the superintendent promised that the statement would be used for no other purpose than to get his license to teach revoked, and that as quickly as it was signed he would be released. These circumstances, coupled with the closeness in time to the first alleged confession which was undisputedly obtained by force, and further considered with the fact that the representative of the state, upon whom rests the burden of presenting the views of the prosecution, has stated in open court to us that in his opinion the confession was inadmissible, are sufficient to require usi to sustain this contention of defendant.

There are other assignments of error, but they are not of such importance as to require a discussion.

For the reasons hereinabove stated, the judgment of the district court of Caddo county is reversed and this cause is remanded for further proceedings consistent with the views herein expressed.

BAREFOOT and DOYLE, JJ., concur.


text:
    ANDREW ELIX v. STATE.
    No. A-10169.
    June 2, 1943.
    (138 P. 2d 139.)

      John F. Thomas, of Lawton, for plaintiff in error. '
    Mac Q. Williamson, Atty. Gen., and ¡Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Andrew Elis, was convicted in the district court of Comanche county of the crime of manslaughter in the second degree and sentenced to serve two years in the State Penitentiary.

In his appeal filed herein the defendant states that the only issue to be determined “is whether the shooting was accidental.”

The defendant and his wife were negroes who operated a rooming house and whisky joint in the city of Lawton. In this place they had four negro girls who stayed there to entertain negro soldiers, and other visitors who came there for whisky and entertainment. A colored division of soldiers was encamped at nearby Fort Sill and many of them patronized defendant’s business. The deceased was one of these colored soldiers.

The testimony by several witnesses for the state was that the defendant had been drinking considerably during the day of December 24, 1940, which is the date of the alleged homicide. That he had brandished a gun a time or two- during the day and had fired one or more shots.

One of the witnesses swore that she saw the defendant pointing a gun at Alma Joe Jennings in the morning, and that night, before the fatal shot was fired, she saw him point a pistol at a negro who was called “Pappa Man”.

The proof showed that earlier in the evening the defendant and his Avife had quarreled, and the wife went into the bathroom with a pistol and the defendant was in the bedroom with a pistol and they each fired a shot, apparently trying to scare each other.

Later- in the evening tAVO negro -women commenced to scuffle in one of the roomsi and the Avife of the defendant ran into the room Avith a gun, stating, “You all aren’t going to tear up my house.” About that time the defendant ran into the room, grabbed the pistol from his wife and said “I’ll fix this,” and whirled and fired, killing the deceased who was sitting over at a tablé with some companions and was not engaged in the controversy. It is apparent from all of the evidence that there was no- intent on the part of the defendant to- kill the deceased.

The defendant’s testimony was that he heard the women scuffling in the front room and ran in, saw his Avife Avith the pistol and commenced scuffling with her, trying to take the pistol aAvay from her, and in the scuffle the pistol was accidentally discharged, striking the deceased and killing him.

The court instructed the jury upon manslaughter in! the first degree, manslaughter in the second degree, and further defined justifiable and excusable homicide. These instructions seem to be fair. No exceptions Avere taken to, any of the instructions and no question is raised that the instructions did not fully present the law of excusable homicide.

In the case of Philby v. State, 64 Okla. Cr. 1, 76 P. 2d 412, 415, the court quoted with approval from 13 Ruling Case Law, p. 8’63, as follows:

“Whether in any particular case the homicidal act was the result of accident must be gathered from all the facts a|nd circumstances surrounding the transaction, and it is peculiarly within the province of the jury to determine this, according to the well settled rules of law.”

In the case of Gaunce v. State, 22 Okla. Cr. 361, 211 P. 517, 518, this court distinguished between justifiable homicide and excusable homicide, as follows:

“There is an important difference between justifiable homicide and excusable homicide, as defined bv our Compiled Statutes 1921, §§ 1752, 1753 (21 O.S. 1941 §§ 731, 732). Justifiable homicide is the taking of human life under circumstances of justification, as a matter of right, such as self-defense, or other causes set out in the statute. Excusable homicide is where death results from a lawful act by lawful means, accomplished accidentally or by misfortune or misadventure, or so accomplished with sufficient provocation, with no undue advantage and without unnecessary cruel treatment. Wadsworth v. State, 9 Okla. Cr. 84, 130 P. 808.”

21 O.S. 1941 § 716 provides:

“Every killing of one human being by the act, procurement or culpable negligence of another, which, under the provisions of this chapter, is not murder, nor manslaughter in the first degree, nor excusable nor justifiable homicide, is manslaughter in the second degree. R.L. 1910, § 2325.”

Culpable negligence is defined as the omission to do something which a reasonable and prudent person would do, or the want of the usual and ordinary care and caution in the performance of an act usually and ordinarily exercised by a person under similar circumstances and conditions. Philby v. State, supra.

The issues presented a question for the determination of the jury. There is abundant evidence to support their finding.

Counsel for the defendant, without citation of authority, alleges that the court erred in connection with the proceedings when the jury returned to the courtroom, after the case was finally submitted, and inquired as to whether they could suspend the sentence. The record discloses the following: (the jury comes into the courtroom)

“By the Court: All right, gentlemen, have you arrived at a verdict? By a Juror: We want to ask you a question? By the Court: All right. You can ask the question. By a Juror: Does this jury have a right to state the penalty and then suspend that penalty? By the Court: No', the jury has no power at all to suspend sentences. That is within the province of the court. By a Juror: You didn’t cover that within the instructions. By the Court: Now, the jury has no power to suspend sentences, The court can suspend sentences, but the jury cannot. The jury doesn’t have that power. They only have the power to pass upon his guilt or innocence. You don’t have any power to suspend sentences, but the court does have such power. All right. (Thereupon, the jury retires from the courtroom.) * * * (Thereupon, the jury enters the courtroom.) By the Court: Gentlemen, have you arrived at a verdict? By a Juror: We have. By the Court: All right, pass it up. (Beads verdict). Is that the verdict of all you, gentlemen? By Jurors: Yes, sir. By the Court: So say you all? By Jurors: Yes, sir. By the Court: Now, gentlemen, through inadvertence I gave you a misstatement. A while ago you came in and asked the court if you could, if you had the power, if the jury had the power to suspend sentences. I advised you that the jury had no such power. I was correct in that. I also advised you that the court did have the power and I was in error in this: That the court does have the power to suspend sentences in all crimes except murder and manslaughter and arson. I was thinking at the time, without referring to the statutes, that the court did have the power to suspend sentences for manslaughter in the second degree, but not so. The statute just says manslaughter, which includes manslaughter in the first degree and manslaughter in the second degree, so neither the jury nor the court has the power to suspend manslaughter verdicts, whether it he in the first degree or second degree. I thought I had better make that explanation to you. With that explanation, is it still your verdict, all of you say it is still your verdict to find the defendant guilty and fix his punishment at two years* in the State Penitentiary? By Jurors: Yes, sir. By the Court: Is that the verdict of all of you? By the Jurors: Yes, sir.”

A short while before this occurred the record discloses that the jury had returned a verdict of guilty of manslaughter* in the second degree, but leaving the punishment to be fixed by the court, and that the court refused to receive said verdict but sent the jury back for further deliberation, after which the proceedings hereinabove quoted occurred.

There would be m> justification for our holding that the jury would not have convicted defendant had they not been influenced by the belief that the court would' suspend the sentence, in view of the fact that they had, prior tO' their final verdict, returned a verdict of guilty, leaving the punishment to the court. In addition to that, the court specifically advised them when the last verdict was returned that he did not have the power to suspend the sentence in a conviction for manslaughter, and then, after being so advised, each of the jurors affirmatively stated that they desired the verdict to' remain as it was written.

It is our conclusion that the verdict of guilty is fully justified under the law and the evidence and the punishment which was assessed the defendant could hardly be said to be excessive in view of the circumstances surrounding the homicide and the defendant’s apparent utter disregard, for tbe safety of other persons in his discharging of the pistol.

The judgment of the district court' of Comanche county is accordingly affirmed.

BAREFOOT and DOYLE, JJ., concur.


text:
    BILL WESTON v. STATE.
    No. A-10171.
    June 9, 1943.
    (138 P. 2d 553.)

      L. J. Burt and J. F. Greason, both of Sapulpa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Everett S. Collins,, Co-. Atty., of Sapulpa, for defendant in error.
   BAREFOOT, J.

Defendant, Bill Weston, was charged in the district court of Creek county with the crime of rape in the first degree, was tried, convicted, and sentenced to serve a term of 15 years in the State Penitentiary, and has appealed.

Before discussing the issues in this ease, we desire to quote from the case of Sowers v. Territory, 6 Okla. 436, 50 P. 257, 258. This opinion was rendered in the early Territorial days by Justice Tarsney. It discusses a question that arises in the instant case, a question that does ¡arise in many cases of this character. What Justice Tarsney says is sound law and has been followed from early times to the present in passing upon rape cases that have come before appellate courts for review. It is there said:

“The ordinary rule approved by this court is that where there is any evidence to support the verdict, or where the evidence is conflicting, the appellate court will not examine the record for the purpose of ascertaining or determining the weight of such evidence, and the verdict approved by the trial judge will be allowed to stand; but cases of the character of the one at bar have always been held an exception to such rule, and even exceptional, in this and other particulars, from the rules of procedure in ordinary criminal cases. Sir Matthew Hale, in 1 Pleas of the Crown (Ed. 1778) p. 363, distinguishes this character of case and the procedure from other criminal cases, and lays down certain rule® and admonitory advice that have been approved by the courts of every jurisdiction since that day. He says: ‘It is true that rape is a most detestable crime, and therefore severely to be punished, with death; but it must be remembered that it is an accusation easily to be made, and hard to be proved, and harder to be defended by the party ac'cused, though never so innocent.’ He then mentions some unfounded malicious prosecutions for rape, among them a case tried before himself, where the prosecutrix swore positively to the commission of the offense, and it turned out upon inspection to have been physically impossible for the accused to have committed the offense. He adds: ‘I only mention these instances that we may be more cautious upon trials of offenses of this nature, wherein the court and jury may with so much ease be imposed upon without great care and vigilance, the heinousness of the offense many times transporting the judge and the jury with so much indignation that they are hastily carried to the conviction of the person accused thereof, by the confident testimony sometimes of malicious and false witnesses.’ ”

This is what we mean when we say that cases of this character should not be decided upon technicalities, based upon a fixed policy that the verdict of the jury is final and absolutely correct on every proposition of fact. The doctrine that one may be convicted on the uncorroborated testimony of the prosecutrix has an exception to the rule that is as well founded as the rule itself, and that is that where her testimony is contradictory, uncertain, improbable or she has been impeached, her testimony should then be corroborated. And this corroboration should be oí such dignity as to give it weight with the jury upon the question that the actual crime has been committed. It should not be such slight circumstances as to leave the court and jury to guess or speculate that the crime has been committed and that the defendant is guilty. Many cases of this nature that come before this court for review are of such character that there cannot but be a doubt as to the guilt of the defendant, and the least action upon the part of the court or the slightest incompetent evidence causes the jury to return a verdict of guilty.

The conviction for first degree rape carries with it a minimum punishment of 15 years in the penitentiary, land a maximum punishment of death or life imprisonment. Certainly there is reason for the rule that has been so long adhered to by this court that close scrutiny will be given to the evidence before a conviction will be permitted to stand.

In the past few years numerous rape cases, have been affirmed by this court: Roberts v. State, 31 Okla. Cr. 103, 237 P. 148; Lane v. State, 48 Okla. Cr. 84, 289 P. 357; Lynch v. State, 42 Okla. Cr. 415, 276 P. 501; Fowler v. State, 42 Okla. Cr. 300, 275 P. 655; Malone v. State, 40 Okla. Cr. 102, 267 P. 486; Allen v. State, 35 Okla. Cr. 64, 248 P. 655; Harris v. State, 27 Okla. Cr. 405, 228 P. 525; Varner v. State, 69 Okla. Cr. 294, 102 P. 2d 615. Others have been reversed: Morris v. State, 9 Okla. Cr. 241, 131 P. 731; Ferbrache v. State, 21 Okla. Cr. 256, 206 P. 617; Douglas v. State, 19 Okla. Cr. 257, 199 P. 927; Davidson v. State, 57 Okla. Cr. 188, 46 P. 2d 572; Johnson v. State, 52 Okla. Cr. 397, 5 P. 2d 772; Dawes v. State, 34 Okla. Cr. 225, 246 P. 482; Woodruff v. State, 74 Okla. Cr. 289, 125 P.2d 211; Miller v. State, 65 Okla. Cr. 26, 82 P. 2d 317; Williams v. State, 61 Okla. Cr. 396, 68 P. 2d 530; Kilpatrick v. State, 75 Okla. Cr. 28, 128 P. 2d 246; Coppage v. State, 76 Okla. Cr. 428, 137 P. 2d 797.

We realize the disadvantage the trial courts are put to in the trial of this class of cases. There is generally strong feeling in the community by reason of the nature of the crime, and often of the person involved. These charges are often the outgrowth of alleged attacks upon children of tender age. The facts are often given wide publicity in the local communities. If a verdict of guilty is rendered by the jury, the only relief that can be given by the trial court is the granting, of a new trial at a great expense to the county. In the appellate court we have an opportunity to survey the whole record, after it has been reviewed and briefed by attorneys for both the state and the defendant. It is no pleasant task to reverse a rape case, and it is no pleasant memory to> send a man to the penitentiary even for a minimum of 15 years when there is grave doubt of his guilt, and by evidence of one whom the laws require to be corroborated, and the corroboration is not sufficient. But our sworn duty demands that the law be followed, and that justice shall prevail.

The facts as revealed by the record in this case are that defendant, Bill Weston, was charged in Creek county with the crime of statutory rape on Betty Lou flames, “a female under the age of 14 years, to wit, of the age of 11 years.” The date relied upon by the state was on or about March 15, 1939. Both defendant and prosecutrix resided in the city of Sapulpa, in the same block, about 150 feet apart. Back of defendant’s house 15 or 20 feet was a garage in which he worked as a mechanic, on automobiles. It was a public garage, although only one car could be placed therein at a time. Two large doors opened to the west, and toward defendant’s residence.

Prosecutrix testified that she came often to defendant’s garage to play, being sent away from home by her mother, and that at various times he had made different articles and given her, and at one time had fixed her skates. The prosecutrix lived Avith her mother, who Avas divorced. Her mother died on April 25,1939, and immediately thereafter her father- and his wife, her stepmother, came and took prosecutrix and the other children away. She testified that she had intercourse Avith the defendant in his garage about the middle of March, 1939, before her mother died. That she had intercourse with him “twenty or thirty times” before that in the garage; and at one time on a creek by the side of the road when he was taking her and her five-year old brother to the country home of her sister, and stopped to get water for his car. She did not know the date of the first act, but that the first time he did anything to her he did it with his finger, and the next day she went back to the garage and he had intercourse Avith her. Her Testimony Avas that these different acts were every day or so, but that no act Avas committed after April 25,1939, the date of her mother’s death. With reference to hoAv the acts occurred, she testified:

“Q. And you say you had intercourse with him in March, about the middle of March, 1939? A. Yes, sir. Q. How did he accomplish this act, Betty Lou? A. Well he had me hunker down on him. Q. And which position was he, lying there or standing? A. He was kind of squatting down.”

She testified that each act was in the same manner, except the one in the country.

The place where defendant had intercourse Avith her “twenty or thirty times” Avas in a public garage where the public came and went at any time. There Avas no evidence that the doors Avere closed at any time these acts took place, and the evidence of every witness was that yon could see in this garage from the back steps of defendant’s residence, which was only a distance of 15 or 20 feet from the garage. Pictures of the garage are attached to the case-made, and they reveal that when these doors are open you can see the entire inner part of the garage.

Defendant and his wife both testified that she assisted him with his work in the garage, and also did her household duties, but that she was in the garage working at different times every day, and that she at no time saw any of the acts testified to by the prosecutrix. The defendant denied the testimony of the prosecutrix in toto>.

According to the evidence of the prosecutrix, she never at any time before the death of her mother told her of the acts of the defendant, nor did she at any time tell anyone until her stepmother claimed that she detected something wrong with her while washing her clothing, and made threats if she did not tell her the truth. It was then for the first time that prosecutrix told of the acts of the defendant. The evidence is uncertain as to when she first told her stepmother, but it certainly was not until in the late summer or early fall of 1939, at least six or eight months after the act charged.

Several witnesses testified to the reputation of the prosecutrix for truth and veracity in the community in which she lived, and that it was bad. This was especially brought out by the witness Ben Rictor, who testified that he kept a store for a number of years in that neighborhood, and that she often came to his store to get articles for the family, and would order things and say they had sent for them, and on investigation he would find that this was not true.

From the above statement of the evidence in this case, on the part, of the state, it will be readily observed that it comes clearly within the exception to the rule that one may be convicted upon the uncorroborated testimony of the prosecutrix.

We now come to the consideration of the evidence offered by the state, which it is contended corroborates the testimony of the prosecutrix. It is of the following witnesses: Freddy Hames, seven-year-old brother of the prosecutrix, who was five year’s of age at the time of the alleged crime; Dr. B. C. Schwab, Dr. J. F. Curry, Leona Hames, and Goldie Bays.

Freddy Hames testified that he was seven years of age at the time of the trial, which was on the 28th day of May, 1941. When asked if he knew what it was to. tell the truth :

“A. {No answer.) Q. Do you know what it is to tell a lie? A. (No answer.) Q. What would your mother and father do if you told a lie? A. Whip me.”

He testified the defendant took him and the prosecu-trix to their sister’s home in the country; that they stopped to get some water, and defendant told him to- stay in the automobile. That he stayed in the car and listened to the radio., a,nd defendant and Betty Lou went down to get the water and were gone about an hour. He testified that they stayed at his sister’s one night and the defendant came and got them and took them home the next day. The prosecutrix testified that they stayed about a week, and that defendant did not come back for them, but that an uncle took them home.

It will be noted that this testimony does not corroborate the prosecutrix as to the time'alleged in the information. It at best only presents evidence of an opportunity at a different time. In the case of Self v. State, 62 Okla. Cr. 208, 70 P. 2d 1083, 1092, it is said:

“It may be said in passing that opportunity may be considered as one of the circumstances in a rape case, but it is not corroboration.”

Doctor Schwab testified that he had examined the prosecutrix “a year or more ago;” that the purpose of his examination was to determine whether or not she had had intercourse, and from his examination the hymen was ruptured, and “all evidence that she had had intercourse.” He was indefinite a,s to the date he made this examination, but he thought it was in August, 1939. This was abbut five or six months after the time charged in the information in this case. He could not tell the length of time, but if it had been recent, within a few days, there would have been tissue that would not be healed, but this had been so long off that the hymen was healed. It is very doubtful if this testimony with reference to “all evidence that she had had. intercourse” was admissible. Under all the authorities it is impossible to be certain that one has had intercourse simply because of the fact that the hymen has been ruptured and is not present. There are numerous ways for this to be ruined other than by -intercourse. This is especially true where the examination is not made until some six or eight months after the time of the alleged intercourse, as in the instant case.

Doctor Curry’s evidence Avas to the same effect. He did not know the exact date of his examination, but he thought it was in the summer of 1939. It was at the same time the examination Avas made by Doctor Schwab.

Leona Hames was the second wife of the father of prosecutrix. They had married on July 13, 1937. She took the prosecutrix to the offices of Doctor Schwab and Doctor Curry to have her examined. This was just before school started in 1939. Her testimony was, in part:

“Q. Do you know about when you took her to the doctor’s office? A. I don’t know just exactly the day, but it was a while before school started. Q. You mean the year 1939? A. Well, no. They come up there in 1939 and she had been there right close to a year when she told me.”

Mrs. Bays only testified to the tearing down of a certain building near the premises two and a half or three years prior to the trial, which had no reference to- the issues involved.

The defendant, his wife, and several witnesses testified with reference to enmity and ill will existing between the father of prosecutrix and his wife and the defendant, and to specific things that had been done and said by them in reference thereto. It is unnecessary to give details thereof.

Mrs. Trotter, a neighbor, testified to' having heard a conversation between the prosecutrix and her stepmother in which prosecutrix told her she did not want to testify against the defendant, and her stepmother told her that she had to. This conversation occurred some time in June, 1939. She testified:

“Q. How did this conversation occur — what brought it up, if you know? A. This is the way I remember: about the time I sat down there, Barbara Jean brought Mrs. Hames’ boy to her and she stopped to feed the baby-— Betty Lou and Mrs. Hames were washing — and when she stopped to feed the baby, she called Betty Lou. Q. Who called Betty Lou? A. The second Mrs. Hames. She said, ‘Come here,’ and she says, ‘What do you want?’ and she says, ‘Iwant you to go over this story again we are going to tell Everett S. Collins (the county attorney),’ and that stirred up my curiosity and she says, ‘I can’t, Leona.’ and Leona says, ‘You are going to — ’ Leona used curse language — and she says, ‘You will have to help me.’ Mr. Collins: I object to any voluntary statement, outside of the question that was propounded to her. Q. I am ashing you to give the conversation between the stepmother and this little girl. Don’t put anything else in. A. I wasn’t only that she cursed at this time. She says, ‘You will have to help me,’ and she called her, and Betty Lou says, ‘What do you want?’ and Leona said, ‘Come over,’ and she says, ‘What is that?’ and she says, ‘Roller skates,’ and she says, ‘That is good; that is just what you will tell,’ and Betty Lou says, ‘Can I go play now?’ and they were talking at that time about Mrs. Weston and old Bill Weston, and I surmised— Q. Don’t tell that. What else did you hear in that conversation? A. That is all. I went in the 'house.”

She also testified to- a conversation she heard between the prosecutrix and her older sister, Barbara Jean:

“A. Barbara Jean said, ‘Betty Lou, I wouldn’t go down there and tell that story; it will make people feel hard at you,’ and she said, ‘I don’t want to-, but Leona is making me.’ ”'

It further appears from the record in this case that after-the original information was filed in the district court the county attorney, for some reason which the record does not disclose, dismissed the charge against this defendant, presumably for the reason that he did not have sufficient evidence to convict him. Afterwards there was some trouble in the community where these parties resided, and in which this defendant and probably the father of prosecutrix were involved, but the record does not disclose the nature thereof; and it seems a petition was circulated directed to the county attorney, evidently for the purpose of having him refile the rape charge which had been previously dismissed. This was done, and the new charge started by the filing of an information against the defendant on February 17, 1941, 23 months after the time charged in the information.

With this record as above stated, what is the duty of this court? We think the correct answer has been given to this question in the case of Sowers v. Territory, heretofore quoted from, and also from the many decisions of this court heretofore cited. We have re-read all of these decisions, and while there is apparent conflict, we have come to the conclusion that those cases which support the doctrine as announced in the Sowers Case are the soundest in reason and should be followed by this court. Those decisions which have not followed the rule as there announced have based their holding upon the doctrine that has been applied to- other criminal cases, that where a question of fact is passed upon by a jury, that verdict will not be set aside if there is any evidence to support it. The court in the Sowers Case, after stating the rule, says:

“But cases of the character of the one at bar have always been held an exception to such rule, and even exceptional, in this and other particulars, from the rules of procedure in ordinary criminal cases.”

This statement is sound, and is in complete accord with many decisions from this court in cases of this character, which hold that each ease finally rests upon the facts of that individual case, after a careful survey by the court of the whole record. This rule is now adhered to by the great weight of authority, and by the best reasoned cases. Our experiences as practitioners for many years and our experience upon the bench and the examination of many cases have led us to come to this conclusion in cases of this character.

Here there is absolutely no corroboration of the pros-ecutrix as to the act charged in the information. It clearly occurs that if these acts had occurred “twenty or thirty” times in a public place, where the wife of defendant and her nephew were continually working, that they or some one else would have seen so that they could have corroborated the prosecutrix. They might not have observed one or more occasions, but in the number testified to by the prosecutrix it is inconceivable that some one would not have seen them. The county attorney seemed to have realized this or he would not have dismissed the original information filed against this defendant.

We have carefully read the cases cited in the brief of the Attorney General. They are: Smith v. State, 72 Okla. Cr. 314, 115 P. 2d 925; Thomas v. State, 69 Okla. Cr. 188, 101 P. 2d 283; Bershears v. State, 32 Okla. Cr. 180, 240 P. 326 ; Ellis v. State, 54 Okla. Cr. 295, 19 P. 2d 972; Gordon v. State, 55 Okla. Cr. 359, 30 P. 2d 934; Garrison v. State, 57 Okla. Cr. 230, 231, 47 P. 2d 224. It is unnecessary to discuss them. The facts of those cases present strong evidence of corroboration of the prosecutrix in each instance, as will be observed by a reading of them.

The case of Self v. State, supra, has many facts which are almost identical with the facts in the instant case. Two doctors who examined the prosecutrix some eight months after the act charged testified that the hymen was absent. In the opinion by Judge Doyle, it is said:

“It is a well-established principle of criminal jurisprudence that incompetent, irrelevant, and immaterial evidence which tends to excite the passions, arouse the prejudices, and awaken the sympathies, or warp or influence the judgment of jurors in any degree, cannot be considered as harmless.
“While a conviction for statutory rape may be had on the uncorroborated testimony of the prosecutrix, this is only warranted when all the other facts and circumstances of the offense are corroborative of her testimony and her statements are not inconsistent or contradictory. Without such surrounding facts and circumstances, the bald statement of the prosecutrix against the defendant would be so devoid of testimonial value as to render it unworthy of belief. * * *
“Thus it appears and the record shows, that the testimony of the prosecutrix was obtained through persuasion, fear and duress. It bears those indications which the testimony of children of that age do> so frequently bear, of being, to a considerable extent, the thoughts of others!— thoughts developed after repeated conversations and much pressure. * * *
“It may be said in passing that opportunity may be considered as one of the circumstances in a rape casé, but it is not corroboration. In several cases it has been) held that the mere opportunity to commit the crime of rape is not sufficient corroboration of the testimony of the prosecutrix that rape was committed. State v. Brundidge, 204 Iowa 111, 214 N.W. 569; Robbins v. State, 106 Neb. 423, 184 N.W. 53; People v. Brehm, 218 App. Div. 266, 218 N.Y.S. 469, 470; State v. Bowker, 40 Idaho 74, 231 P. 706.
“It is urged on the part of the state that the testimony of the two physicians making the physical examination, to the effect that they did not find any evidence of the hymen, corroborates the testimony of the prosecutrix. * * *
“The rule must be taken as settled in this state that evidence of illicit acts with the defendant prior and subsequent to the date of the charge relied upon by the state for conviction is admissible. * * *
“An exception to the rule exists in some cases, and evidence of improper relations with other men is admitted to rebut the testimony of physicians regarding the absence of the hymen, or to account for a condition of pregnancy. 33 Cyc. 1481. * * *
“In the case of People v. Brehm, supra, the court held that, where a physician had testified that the hymen of prosecutrix had been ruptured, but that he was unable to say when it had been done, it was error to refuse permission to cross-examine prosecutrix as to illicit relations with other men. And held further:
“ ‘Proof ,, of absence of hymen day after alleged statutory rape and opportunity, together, held not to constitute corroboration of prosecutrix.’ * * *
“Aside from the testimony of the prosecutrix, there was no evidence whatever tending to corroborate her testimony as to the several acts, and there was no evidence whatever tending to show the surrounding circumstance^ or facts of prior and subsequent acts of intercourse between the prosecutrix and the defendant. She stated that the first act and the last act were committed at Tell, Tex. This is the only detail as to time or place of said occurrence. No testimony was given by her as to the particulars and there was no direct evidence showing penetration.
“It also appears that she made no complaint of injury or mistreatment on the part of the defendant until over eight months had elapsed from the date alleged in the information that the act charged occurred.
“The charge of illicit sexual relations is easily made, and often inspired by malice, hidden motives', or revenge, and evidence to establish the same may be easily fabricated and hard to disprove. As has been well stated by an able jurist: There is no class of prosecution attended with so much danger, or which affords so ample an opportunity for the free play of malice and private vengeance. In such cases the accused is almost defenseless.’
“In our opinion no person charged with the crime should be convicted on such improbable, inconsistent, and unreasonable testimony as that given by the prosecutrix in this case.
“Our conclusion is that the evidence was insufficient to justify or sustain the verdict, and that the verdict was more the result of prejudice than the calm and. dispassionate conclusion of the jury upon the facts in evidence. * * *
“It must not be forgotten that the rules of law in criminal cases are made not only to bring about the punishment of the guilty, but also to protect accused persons upon the presumption that they are innocent of crime until their guilt has been established beyond a reasonable doubt.
“For the reasons stated and because the evidence is entirely insufficient to support the conviction, the judgment of the trial court should be reversed and the defendant discharged. It is so ordered.”

See, also, Miller v. State, 65 Okla. Cr. 26, 82 P. 2d 317.

The defendant in this case made a motion for continuance by reason of the absence of a witness, J. B. Wells, and set up what he would testify if present. The county attorney, for the purpose of not having a continuance of the case, admitted that the witness, if present, would testify to the facts set up in the affidavit for continuance, but that he would not admit the statements made were true. With this agreement, the evidence was presented. The witness, according to- the affidavit, would have testified that he was in the army at Marchfield, California; that he had recently been inducted and could not get a furlough to return to the state and testify; that he was a nephew by marriage of the wife of the defendant and lived at the home of defendant and worked in the garage with the defendant during all of the years 1938 and up to- April, 1940, and lived in Sapulpa up to about February 15, 1941, when he was inducted in the army. “That said witness was working with this defendant at all times from early morning to late at night in the garage operated by the defendant in all of March, 1939, and for more than two years prior thereto;” and that “defendant never had sexual intercourse with the complaining witness in or about said garage where the defendant and witness worked on or about the 15th day of March, 1939, or prior thereto, while said witness worked at said garage; that said garage was a public place and customers were coming and going at all hours of the working day.” He would have testified to there being double doors in the garage, twelve feet wide, and that they stood open all day from early morning until late in the evening of each work day; and further as to the close proximity of defendant’s house with reference to the location of the garage, and to the fact that defendant’s wife was in and out of the garage many times each day in March, 1939, and prior thereto. This evidence was in no way contradicted, nor was this witness impeached. It is hard to observe how a jury could, in view of this testimony, come to a conclusion of the guilt of the defendant. As far as this record is concerned, this testimony was entitled to the same consideration as if the witness was present and testifying in person. It is true that a jury has the right to disregard the testimony of any witness, but certainly under the circumstances surrounding this case there ought to have been some valid reason for the disregarding of the same.

While reviewing the evidence, it cannot but be observed that the evidence of the prosecutrix was--not corroborated to that degree which would justify this court in affirming this case. One cannot read this record without coming to the conclusion that this verdict was the result of passion and prejudice. It is not for us to say as to the guilt or innocence of the defendant, only to see that he has a fair and impartial trial, and the evidence is such, under the law, as justifies the taking of his liberty for a period of 15 years.

There is only one matter revealed by this record to which we have not heretofore referred. The defendant offered several witnesses who testified to his good character and reputation. The county attorney on cross-examination did not ask any of them if they had knowledge of defendant having been previously convicted of crime, though he would have had a perfect right to so question them, when defendant put his character in issue, but when defendant took the witness stand he was asked by the county attorney :

“Q. Have you ever been convicted of a felony? A. Yes, sir. Q. When was that? A. I believe the first time I was convicted was in 1924'. Q. When was the second time you were convicted? A. I was convicted I believe the second time along about 1936 or 1937.”

No other questions were asked in reference to this, and the record does not reveal the nature of the crime of which he was convicted. The answer to these questions of his previous convictions was in all probability the cause of his conviction. This evidence was clearly admissible under the law, and of course was for the consideration of the jury, together with the other evidence in the case, but it only went to his character and credibility as a witness, and not to the corroboration of the prosecutrix. The defendant should not be convicted in this case unless the evidence justified it under the law, even though he had been previously convicted on two different occasions.

For the reasons above stated, the judgment and sentence of the district court of Creek county is reversed and remanded.

JONES, P. J., and DOYLE, J., concur.


text:
    Ex parte MARVIN SANDERS, and three other cases.
    Nos. A-10409, A-10410, A-10411, A-10412.
    June 9, 1943.
    (138 P. 2d 560.)
    Babb & Babb, of Poteau, for petitioners.
    Mac Q. Williamson, Atty. Gen., and Alex E. White, Co. Atty., of Poteau, for the State.
   BAREFOOT, J.

Each of the petitioners, Marvin 'Sanders, Eugene Russell, Albert Knight and Monroe Sitton, were charged in LeFlore county with the crime of rape in the first degree. At their preliminary examination each was held to the district court without bond. An information was filed against each of them in the district court of LeFlore county on April 20, 1948, and they are now confined in the county jail of LeFlore county.

Application was made to the district court of LeFlore dounty on April 20, 1943, for bail, and the writ was granted and the defendants were each admitted to bail in the sum of $10,000.

Each of the above-named defendants has filed his application in this court for a writ of habeas corpus, stating that he is unable to malee the bail in the sum of $10,000, as designated by the order of the district judge of LeFlore county, and praying for an order reducing the same. Each petitioner alleges that he is a minor and. the son of a tenant farmer who owns no property of any description, and that his father is a poor man and all of his friends and neighbors are persons of limited means.

These petitions were heard by agreement of the parties in this court on April 30, 1943, at which time the cases were consolidated by agreement, as the same facts apply to each defendant.

It is unnecessary to give a detailed statement of the testimony presented at the hearing before this court. A complete transcript of the testimony taken at the preliminary examination was introduced, and oral testimony was also heard by the court.

The evidence revealed that by reason of conditions existing in LeFlore county a term of criminal court would probably not be held in that county before October, 1943; and it further appeared that elements, of second degree rape appeared from the record presented, and by reason of these facts this court on the date indicated above granted the writ of each of the defendants, and ordered them released from the county jail of LeFlore county upon the giving of bail by each in the sum of $2,500 to be approved by the court clerk of LeFlore county.

In keeping with this order, the writ is hereby granted to each of the above named defendants, in compliance with the order as above stated.

JONES, P. J., and DOYLE, J., concur.


text:
    Ex parte BILL CANNES.
    No. A-10392.
    June 9, 1943.
    (138 P. 2d 561.)
    Bill Cannes, in pro. per.
    Mac Q. Williamson, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for respondent.
   JONES, P. J.

This is an original proceeding in habeas corpus filed in this court by the petitioner, Bill Cannes, to obtain his release from confinement in the State Penitentiary.

The Attorney General, on behalf of the respondent, Fred Hunt, warden of the State Penitentiary, has filed a demurrer to the petition.

The petition alleges that the petitioner is incarcerated in the State Penitentiary under a commitment from the district' court of Tulsa county upon a conviction for rape of bis daughter, age 13. A copy of the judgment and sentence is not attached to the petition and the number of years imprisonment meted out to the petitioner upon his conviction is not set forth in the petition.

The petition alleges in substance that the petitioner was a Greek and could speak very little of the English language. That the mother of his little girl was a prostitute and was forcing his little daughter to follow in her mother’s trade. That when the petitioner learned of the way his wife was acting, he protested vigorously, causing the wife and little daughter to frame him on the charge with which he stands convicted.

That the trial court forced the defendant to trial without his witnesses. That the defendant, not being very well versed in the English language, did not know what was going on, and the public defender who was appointed to defend him could not understand petitioner well enough to prepare his defense.

Petition further alleges that the court erred in the giving of certain instructions and that his conviction was solely due to perjury on the part of the witnesses for the prosecution.

In a petition for habeas corpus by a prisoner in custody under sentence, our inquiry is limited to whether the court who sentenced accused had jurisdiction of prisoner’s person and of the crime charged, and if it had jurisdiction! to convict and sentence, the writ cannot issue to correct errors or irregularities in the proceedings before the trial court. Ex parte Stover, 14 Okla. Cr. 120, 167 P. 1000 ; Ex parte Vanderburg, 73 Okla. Cr. 21, 117 P. 2d 550; Ex parte Tollison, 73 Okla. Cr. 38, 117 P. 2d 549.

In Ex parte Tollison, supra, it is stated:

“The Criminal Court of Appeals on habeas corpus will not look beyond the judgment and sentence of any court of competent jurisdiction as to mere irregularities of procedure or errors of law on questions over which the court has jurisdiction.”

The facts alleged in the petition filed herein are not such as would authorize this court to hold that the district court of Tulsa county, which had jurisdiction of petitioner’s person and of the crime charged, lost jurisdiction to pronounce sentence by reason of some error in the proceedings which rendered the judgment wholly void.

The. writ of habeas corpus may not be used as a substitute for an appeal.

For the reasons above stated, the writ is denied.

BAREFOOT, J., concurs. DOYLE, J., absent and not participating.