text:
    JESS COWLEY v. STATE.
    No. A-3299
    Opinion Filed June 22, 1920.
    Rehearing Denied Jan. 15, 1921.
    (194 Pac. 284.)
    (Syllabus.)
    1. INDICTMENT AND INFORMATION — Variance From Complaint. When it appears that the charge in the complaint before the committing magistrate is substantially the same as that charged in the information, a motion to quash on the ground that the offense charged in the information differs from that charged in the complaint upon which the defendant was held to answer was unavailing and was properly overruled.
    2. EVIDENCE — Carbon Copy of Transcript of Testimony at Preliminary Examination. Where proper predicate is laid, the testimony of a witness given at the preliminary examination may be read to the jury at the trial, and it is immaterial whether such testimony is read from a carbon copy of the original transcript of the stenographer’s shorthand notes, provided it is satisfactorily established to be a true, full, and correct transcription of the testimony of the witness at the preliminary examination.
    3. TRIAL — Argument for Prosecution. Por argument of counsel held not to be prejudicially erroneous, in view of defendant’s admissions on cross-examination, and also the admonitions of trial court to the jury, see body of opinion.

      .Appeal from District Court, McCurtain County; C. E. Dudley, Judge.

    Jess Cowley was convicted of larceny of live stock and sentenced to serve a term of seven years’ imprisonment in the state penitentiary, and he appeals.
    Affirmed.

      Ledbetter, Stuart & Bell, T. J. Barnes, and Ledbet-ter v. Hudson, for plaintiff in error.

      S. P. Freéling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   MATSON, J.

This is an apipeal from the district court of McCurtain county, wherein Jess Cowley was convicted of larceny of live stock and sentenced to serve seven years’ imprisonment in the state penitentiary. The evidence on the part of the state establishes the larceny of a brown mare and colt from one Sam, Gafford by the defendant and one Brawley, on or about the 15th of May, 1916; the animals being taken across Red river into Texas and there disposed of. The defendant admitted taking the animals across from McCurtain county into Texas, but claimed that he had been hired to do so by one Jim Pope, who, the defendant testified, had the animals corralled at Hayworth, lOkla., and paid the defendant $5 for taking them from McCurtain county some 19 or 20 miles across the river into Texas. AH the essential elements of the crime were established by the testimony of the state’s witnesses, and, while the evidence is conflicting, there is ample evidence in the record to support the conviction.

It is first contended that the trial court erred in overruling the motion of the defendant to quash the amended information. The information, as 'originally filed in the district court, charged the defendant with the larceny of “a certain brown mare colt.” As amended, the information charged the defendant with the larceny of “a certain brown mare and colt.” The date of the alleged larceny and the ownership of the property’were identical in each the original and the amended informations, the only difference being in the description of the ¡property alleged to have been stolen. It is contended that the action of the court was erroneous, in that a different offense was alleged in the amended information, upon which the defendant had no preliminary examination.

It appears from the record that the amendment to the information was made at a term of court preceding the term at which the cause was tried, and that the defendant was granted a continuance on account of the amendment because of surprise. At the term of court in September, 1917, when this cause was again called for trial, counsel for the .defendant interposed an objection to going to trial upon thé amended information, for the reason that the information had been materially changed in such a manner as to prejudice defendant’s rights, and that defendant was thereby taken by surprise and was unprepared to meet the issues of the amended information. The trial court overruled the motion, with the following comment:

“This motion is overruled, .for the reason that the amendment as made to the information was by inserting the word ‘and,’ so as to describe the property charged to have been stolen as ‘one brown mare and colt,’ being the description of the property as set forth in the original complaint, upon which defendant had a preliminary examination, and which amendment was made in open court on the 8th day of December, 1916, and the cause at that time was continued by reason- of defendant claiming surprise.”

It is apparent from the comment of the trial judge that there is no merit in the contention that the court erred in overruling the motion to quash the amended information, as the amended information described the property in the identical language with the original complaint upon which the preliminary examination was held, and the amendment was made for the purpose of charging the larceny in the identical 'language employed in the original complaint. The trial court was very generous in granting a continuance of the cause in the first ini stance, in view of the fact that the .amendment did not charge any different offense ' from- that charged in the original complaint. In Agent v. State, No. A-3358, 18 Okla. Cr. 281, 194 Pac. 233, it is held:

“When it appears that the 'charge in the complaint before the committing magistrate is substantially the same -as that charged in the information, a motion to quash on the ground that the offense charged in the information differs from that charged in the complaint upon which the defendant was held to answer was unavailing and was properly overruled.”

See, also, additional authorities cited in the foregoing opinion:

The decision of this court in the case of Agent v. State, supra, is conclusive of the contentions urged in the first assignment of error.

It is also contended that the trial court erred in permitting the testimony of one Jim jones, as contained in a carbon copy of the original copy of the testimony of such witness a-s taken at the examining trial, to be read to the jury. There was sufficient evidence introduced as a predicate for the admission of the original, and it is only contended that the admission of this evidence was erroneous because it was contained in a carbon copy.

The stendgrapher who took down in shorthand the testimony of the witnesses at the preliminary examination was called, and testified that he had correctly trah-scribed his shorthand notes of the witness Jones’ testimony, and had made a typewritten original and two carbon copies thereof; the typewritten original having been filed with the court clerk. There is also evidence to the effect that the original copy filed with the court clerk could not be found, and after the stenographer had identified the carbon copy as a true, correct, and full transcription of the evidence given by Jim Jones at the preliminary examination, the court permitted such evidence to be read to the jury. Under the showing made, this was not error. Warren v. State, 6 Okla. Cr. 1, 115 Pac. 812, 34 L. R. A. (N. S.) 1121; Wadsworth v. State, 9 Okla. Cr. 84, 130 Pac. 808.

Next it is contended that the trial court erred in not granting the defendant a new trial because of alleged misconduct of the county attorney in his closing argument to the jury in stating.to the jury as follows:

“Jim Pope had proved at his trial, wherein he was charged with the larceny of the horses in controversy, that he (Jim Pope) bought them from the defendant, Jess Cowley.'”

The record upon this subject is as follows, quoting from the argument of the county attorney:

“When the stock was found, gentlemen of the jury, after this old man had located them in Texas and warrants were issued,. as the defendant says, for himself and Jim Pope, did he ever go back to Texas? Jim Pope proved that he bought them from the defendant here, and now Jess Cowley is trying to do the 'same thing here.

“By Mr. Barnes: The defendant excepts to the argument of the county attorney that Jim Pope proved that he bought this stock of the defendant, on the ground that the same is prejudicial to the rights of the defendant.”

Whereupon the county attorney continued his argument without any ruling by the trial court. At the conclusion of the county attorney’s argument, the court gave the jury the following admonition:'

“Gentlemen of the jury, should a controversy come up over the testimony Mr. Barrett says was in the record, you will take the testimony as you remember it, and not •as stated by the attorney.”

Whereupon Mr. Barnes, of counsel for the defendant, made the following request:

“The defendant asks the court to instruct the jury to disregard that part of the county attorney’s argument in which he says it has been proved that Jim Poipe had proved that he bought the horses in controversy from the defendant, Jess Cowley.

“By the Court: Which request is refused, and the jury are instructed to disregard any statement made by the attorneys as to what the testimony was which in their opinion was not testified to in the case.”

On cross-examination, the defendant testified in part as follows:

“Q. Jim Jones, I mean Jim Pope, was arrested for having this stuff over there, wasn’t he? A. I heard he was.

“Q. As a matter of fact you know there was a warrant issued for Jim Pope and you both for stealing this stuff? A. I have heard it.

“Q. And you didn’t ever go over there as a witness for Jim Pope? A. No; sir.

“Q. And I will ask you if it isn’t a fact that Pope proved over there that he bought this stuff from you and he was discharged? A. I guess he did.

“Q. Isn’t it a fact that Pope is now in the penitentiary for stealing horses? A. For stealing cows.

“Q. You know Jim Pope and the reputation he had? A. Yes; I knew him.’’

' In view of the defendant’s foregoing admission and the action of the trial court in admonishing the jury to disregard any argument not based upon the evidence, we find nothing in this assignment of error sufficiently prejudicial to authorise a reversal of the judgment. The instructions of the trial court fully and fairly cover the law of the case, and give the defendant the full benefit of the defense interposed by him.

We have carefully considered every alleged error assigned as ground for reversal of this judgment, and the conclusion is reached that the defendant had a fair and impartial trial, that the evidence is clearly sufficient to support the verdict, and that the judgment should be affirmed. It is so ordered.

DOYLE, P. J„ and ARMSTRONG, J., concur.


source: Caselaw Access Project

author: ARMSTRONG, J.

license: Public Domain

text:
    H. M. ELLIOTT v. STATE.
    No. A-3040
    Opinion Filed Aug. 28, 1920.
    Rehearing Denied Jan. 15, 1921.
    (194 Pac. 267.)
    (Syllabus.)
    1. HOMICIDE — Dying Declarations — Admissibility. Whether or not a purported dying declaration was made by a deceased under the sense oí impending death is, first, solely a question for the trial court, in so far as it determines the admissibility of the declaration. In order to be admissible in evidence, it must sufficiently appear by evidence adduced on the preliminar-hearing, had in the absence of the jury, that such declaration was made at a time that the deceased was under a sense o 0 impending death, and that the declaration is restricted to fae‘n concerning the facts and circumstances attending the homieid-being tried, and, such facts being established, such declaration should be admitted in evidence, notwithstanding that subsequent to making such declaration the deceased expressed the belief that he would get well- It is not necessary that the deceased declare that he is going to die. It is sufficient if the circumstances, including his physical condition, and that he was too weak to sign his name to the declaration and so affixed his mark thereto, and that, he four days after making such declaration died from the infliction of the wound to which said declaration relates, show that at the time of making such declaration he believed he was going to die, and renders said purported dying declaration admissible in evidence.

      2. HOMICIDE — Self-Defense—Evidence of Decedent’s Acts of Vio- , lence. Where, in a homicide case, self-defense is pleaded, and there is evidence to support same, specific acts of violence on the part of the deceased may, if known to the defendant prior to the homicide, be shown in evidence.
    3. SAME — Acts of Violence Unknown to Accused. Before evidence of specific acts of violence on the part of the deceased toward third persons, in a homicide case where self-defense is pleaded, is competent, a predicate must be laid by offering to show by the defendant that he had knowledge of such specific acts prior to the commission of the homicide. Where no such showing is made, and- the entire defense of self-defense is based upon the acts and conduct of the deceased at the time the homicide was committed, the alleged error of the trial court in excluding evidence of specific acts of violence toward other persons is not prejudicially erroneous.
    4. HOMICIDE — Harmless Error — Instructions and Exclusion of Evidence. Where defendant is convicted of manslaughter in the first degree, and under his own testimony he is at least guilty of that degree of felonious homicide, alleged errors of the trial court in excluding evidence or in giving or refusing to give instructions will not be considered prejudicial.

      Appeal from District Court, Murray County; F. B. Swank, Judge.

      H. M. Elliott was convicted of manslaughter in the first degree, and he appeals.
    Affirmed.

      Broadbent & Rawlings, for plaintiff in error.

      S. P. F-reeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, H. M. Elliott, hereinafter designated as defendant, was informed against for the murder of C. M. Taylor, convicted of manslaughter in the first- degree, and sentenced to imprisonment in the penitentiary at McAlester for a term of four years. To reverse the judgment rendered on the verdict he prosecutes this appeal.

The evidence tended to show that the deceased was a man about 30 or 35 years old; weighed about 170 or 180 pounds; that for two years prior to the homicide- the deceased and the defendant were near neighbors, and there was a tract of 20 acres adjacent to the lands of the deceased and defendant, upon which there was a house used by the defendant as a granary and in which he had stored 200 or 300 bushels of grain, and which said 20 acres of land was used by the deceased and by the defendant as a pasture, of which tract the defendant claimed to have control, and around which said pasture there was little or no fence; that on the day of the homicide the defendant drove to Sulphur, and at the request of the sister-in-law of the deceased took a jug and brought back some coal oil for her, which jug of oil on his return he delivered to deceased, and deceased engaged defendant in a quarrel; that the defendant went to his home and shortly thereafter drove his wagon to near the house in said 20-acre tract, and deceased came up to where, defendant was and a dispute ensued between deceased and defendant, and defendant while in his wagon shot deceased with a 44 Colt’s, from the eifect of the said wound deceased a few days thereafter died.

The state, preliminary to offering in evidence a claimed dying statement of deceased, introduced voluminous evidence that at the time he made said statement he was under the impression of impending death; that said statement was read over to deceased, approved by him as correct, and executed by him in the presence of the witnesses, who signed the statement as witnesses to the execution thereof; together with proof that he was unable to write, and executed the paper by his mark. There was evidence on the part of defendant that tended to show that after making said statement the deceased expressed the opinion that he would get well; that the shot would not kill . him.

The said statement was then offered by the state in evidence, and reads as follows:

“I, C. M. Taylor, realizing that I am about to die, and am fatally wounded, make this statement: H. M. Elliott shot me with a six-shooter.. We had trouble over some stock. I met him in the field. He had been running my mules in the pasture about 20 minutes and I went up there. I asked him what he was going to do, and he said he was going to turn, the stock out, and I told him he would have to kill me first, and he said he would damn sure turn them out, pulled his, six-shooter, and' shot me. He was on a wagon and I was afoot. I was not armed; didn’t even have a poeketknife.. I was two or three feet from the back of the wagon and he was in the front end. I had not threatened him. Jim Elliott was about 80 yards away. 'No one was present. Elliott was on horse running the stock, but when he saw me coming he got in the wagon. Two or three hours before I talked to Elliott at my house that I had turned Jones’ stock out and to tell him, so he could get them up. When I came up Elliott got off his horse and left it with Jim Elliott, and went to the wagon. Mr. Elliott and I had no trouble before.

his

“C. M. X Taylor,

mark

“Witness to statement, also to mark of C. M. Taylor:

“E. E. Vaughn.

“E. P. Nelson.

“H. M. Banning, D. D. S.”

Defendant objected to the introduction of said statement in evidence as the dying declaration of deceased, upon the ground that a proper predicate had not been laid for the introduction of the same. The court overruled said objection, admitted said statement as the dying declarations of the deceased, and defendant excepted.

The defendant first; insists that the court committed reversible error in admitting in evidence as the dying declarations of the deceased the statement admitted in .evidence, for the reason that a proper predicate was not laid for the admission of the same; and with this contention we do not agree. 'The voluminous evidence that was introduced in the preliminary examination as to the admission of said paper shows that at the time said statement was made by the deceased he was under the belief of impending death, as to which his physical condition at the time and his early death thereafter from the wound inflicted by the defendant lends additional weight to the direct statement made by him in said statement “that he made said statement under the impression that his death was impending.” That he subsequent to making said statement expressed the opinion that he would get well did not render said statement inadmissible, as it was the duty of the court to take all the evidence offered in order to determine the state of mind of the defendant at the time of making said statement; and, so doing, we think it sufficiently appears that when the said statement Avas made the deceased believed he was about to die, and that therefore the court did not err in admitting said statement in evidence as the dying declarations of the deceased.

In Hawkins v. United States, 3 Okla. Cr. 651, 108 Pac. 561, it is held:

“Whether a purported dying declaration Avas made under a sense of impending death is a question solely for the court in so far as it determines the admissibility of the declaration in evidence.”

In Morris v. State, 6 Okla. Cr. 29, 115 Pac. 1030, Judge Doyle, speaking for the court, says:

“It is sufficient if it satisfactorily appears that they were made under the sense of impending death, whether it- be directly proven by the express language of the declarant, or be inferred from his evident danger, or the opinions of the medical attendants, stated to him, or from other circumstances of the case, such as the length of time elapsing between the making of the declaration and his death, and the fact that the declarant was so weak that he could not sign his name and so affixed his mark, all of which are resorted to, in order to ascertain the state of declarant’s mind.”

Defendant testified, in substance, that he and deceased lived on adjoining farms; that he was a man about 41 years of age, weighing about 127. pounds, and that the deceased was a man about 28 years of age, about six feet tall, and weighed about 180 pounds; that defendant and the brother of deceased had a joint pasture, composed of about 20 acres of stu'bble controlled by defendant and about 80 acres of grazing land, with running water, controlled by the brother of deceased; that on the 20-acre tract there was an old house, which was being used by, defendant as a granary, in which at the time he had stored some feterita; that on Saturday, the day of the tragedy, defendant had gone to the town of Sulphur and had got a jug of coal oil for Mrs. Taylor, .the sister-in-law of deceased and had brought the same back to her; that deceased came out to the wagon of defendant and got the coal oil, and at that time told defendant that he (deceased) had turned Hess Jones’ stock out of the pasture and deceased wanted to know who in the hell turned them in there, and defendant told him he did, and deceased told defendant that he wanted him to understand, by God, not to turn any more stock in there, that, if defendant did,. it would be the last time that he would ever turn any in, and defendant told deceased he thought he had a right to turn stock in, and deceased then commenced cursing and stepped up to the wagon, stepped upon the back’ of the wagon, and started at him and said, “I will stamp you through the wagon, you God damned son of a bitch;” that thereupon defendant started up and drove off, and deceased stepped off of the wagon, being in a very angry mood.

Defendant then went home, fed his team, hitched up his wagon, got a hammer and some nails, and went over to the house in the pasture where the feterita was stored to fix up the door, after getting a 44 loaded Colt’s revolver, which he Carried along with him; that while he was down at the house fixing the door his son, Jim Elliott, came home on horseiback and came down to the house, defendant having told his wife while at home that he wanted the horse to ride over east to pay for some threshing that he had had done; that after his son, Jim., came down to the house, he told him about the trouble he had had with Charley Taylor, and they decided then to drive all strange stock out of the pasture in order, as defendant testified, to avoid any further trouble with Taylor; and that Jim Elliott then started to drive a pony belonging to Hugh Garrett out of the pasture, and the pony got mixed up with some mules belonging to deceased, and while chasing the pony Jim Elliott also chased the mules some, and deceased started down towards where defendant and his son were. Whereupon Jim Elliott rode up to where his father was and told defendant that the deceased was coming and that he had better go home, and defendant thereupon got in his wagon and started home and deceased holloed at him,, threw up his hands, and told defendant to wait, and defendant thereupon stopped his wagon and waited for deceased to come up, and deceased then asked defendant what in hell he was doing running his mules, and' defendant replied that he was not running the mules but was just trying to get Hugh .Garrett’s pony out, and! deceased' then said, “You are a God damned lying son of a bitch; you were running my mules;” and deceased started for the wagon and defendant told him to stand back, he did not want to have any trouble with him. Deceased then stepped up to the side of the wagon and said, “It had just as well come off now as any time;” and defendant again said, “Stand back; I don’t want to have any trouble with you.” Deceased then whirled around .to. the end of the wagon where the end-gate was out, ¡and started to come over the end of the wagon towards defendant, saying, “You God damned son of a bitch, I will drill you at which time deceased had his right hand in his right pants pocket and his left hand on the end of the wagon. Defendant then picked up his gun, which .was lying on a sack of chops in the end of the wagon, and told deceased to stop, and deceased then told defendant to “shoot, you God damned cowardly, son of a bitch”; .that defendant was afraid of deceased; that deceased did not stop and defendant shot, and deceased swung down off of the wagon and fell backwards and said, “Why didn’t you finish me, you God damned son of a bitch; if I had got to you first I would have finished you;” that defendant did not see any weapon or other thing in the hands of the deceased when he shot him; that after defendant had shot deceased defendant drove the wagon off a little ways and waited until Mrs. Taylor, the sister-in-law of deceased, came out, defendant having sent his son, Jim, after her; that in about five minutes Mrs. Taylor: came up, and defendant told her he had to shoot Charley, that he tried to shoot him in the legs enough to- stop him, and Mrs. Taylor told defendant that she begged and cried with that fellow to keep him from coming up there and trying to start anything; that after Mrs. Taylor got up to the scene defendant left and went to-E. T. Nelson’s and asked Nelson to help carry deceased home; that Jim Elliott was present when the shooting occurred.

Defendant also testified that it was about an hour from the time he had had the first difficulty with deceased until he .shot deceased; that he did not have the gun with him on the first occasion; that he never threatened deceased, or pointed the gun at him, until deceased tried to get into the wagon; that the 'granary was in sight of the house in which deceased lived; that he did not tell his son to chase the stock for the purpose of provoking trouble with deceased.

Defendant offered to prove by one G. W. Davidson that the said witness had seen “violent outbursts of temper without provocation’' on the part of the deceased, and that the same was known to defendant at the time of the tragedy. Upon objection by counsel for the state, the court refused to permit such evidence to be admitted, and defendant excepted thereto. It is contended that this ruling of the trial court was erroneous.

With this contention we cannot agree, for the following reasons: (1) The evidence was objectionable because it called for the opinion of the witness as to what were “violent outbursts of temper without provocation;” (2) the offer was not specific enough to prove any particular acts of violence on the part of deceased which were known to defendant prior to the commission of the tragedy.

Later in the examination of witness Davidson, counsel for the defendant, made the following offer:

“Comes now the defendant and offers to prove- by the witness A. L. Morris that the deceased was a man'' of violent and turbulent character; that deceased had,,a short time previous to this tragedy talked to said witness, who was a boy of about 120 pounds weight, while deceased weighed about 175 pounds; that he attacked him. over a frivolous unimportant matter; that the deceased flew into a violent and unreasonable rage; and forced this witness to leave bis home to save himself; all of which was known to the defendant at the time of the tragedy."

The trial court denied that part of the offer relative to the previous attack over “a frivolous matter,” to which action counsel for the defendant at the time excepted. It is also contended that this was error.

So far as this record shows, the witness A. L. Morris was never sworn and offered in behalf of the defendant for any purpose, so that no questions were ever propounded to him relative to any specific acts of violence by the deceased toward him, 'prior to the alleged homicide, which were known to the defendant. The offer was also objectionable, in that, had such a (witness been offered, it called for the conclusion of the witness as to the merits of the controversy, in that it was over “a frivolous unimportant matter.”

While this court has heretofore held (Mulkey v. State, 5 Okla. Cr. 75, 113 Pac. 532; Mathews v. State, 16 Okla. Cr. 466, 184 Pac. 468), that where the plea of self-defense is interposed, and there is evidence to sustain the same, specific acts of violence known to the defendant anterior to the homicide may legally be given in evidence, there must, as a predicate, be a clear showing, before such evidence becomes admissible, that the defendant had knowledge of these specific acts of violence on the part of the deceased prior to the commission of the homicide, and also a reasonable showing that the defendant acts in his own necessary self-defense. At the time these offers were made, nor at any subsequent stage of the trial, was there such a predicate laid in this case.

While the court gave an incorrect reason for excluding this evidence, this court is not hound by the reason given by the trial court, but if for other reasons the evidence should have been excluded the action of the trial court in excluding the same will not constitute reversible error.

An examination of the record discloses that, although the defendant took the witness stand in his own behalf, he did not claim, nor was there any offer to prove 'by him that he had any knowledge that the deceased had, prior to the commission of the homicide, committed any acts of violence whatever on any other persons. His entire defense is (based upon the acts and conduct of the deceased at the time the homicide was committed. No other element than such acts and conduct is claimed by the defendant to have entered into his apprehension of danger. If the deceased had been guilty of specific acts of violence toward other persons prior to the time defendant claimed he was about to assault him, and these specific instances were known to the defendant, in order to make it clearly appear that this evidence was competent and that the defendant was injured by its exclusion, the defendant should have been asked relative to his knowledge of the same. A disconnected offer to prove that the defendant knew of any specific acts of violence to others, without propounding the proper questions to defendant himself as a predicate for such evidence, does not make a record that discloses that any prejudice resulted to defendant by the exclusion of this testimony, and the burden, under the criminal procedure of this state, is upon defendant in the appellate court to clearly establish that the alleged error of the trial court in excluding evidence probably resulted in a miscarriage of justice, or else deprived defendant of some constitutional or statutory right. Section 6005, Revised Laws 1910.

Further, we are of opinion that the testimony of defendant does not entitle him to an acquittal upon the ground of self-defense, .but, under the most favorable view that may be taken of his testimony, he is at least guilty ' of manslaughter in the first degree, of which crime he was convicted. About one hour previous to the commission of the homicide defendant and deceased had had a difficulty, the circumstances of which were almost identical with the occurrences at the time of the shooting. On the first occasion defendant was not armed, and while deceased, according to defendant’s testimony, was clearly the aggressor and attempted to climb into the wagon and assault defendant, defendant on that occasion was able to avoid trouble by merely driving away; deceased jumping oft ¿he wagon without pursuing defendant or attacking him in any manner.

After this happening defendant drove to his house, procured a loaded 44-caliber revolver, and again went to a place where he had reason to believe that deceased would see him. Defendant directed his son to drive certain stock out of the pasture, and in driving this stock defendant’s son also chased some stock of deceased — an act which was clearly calculated to again arouse the anger of deceased, as defendant must have known.

When deceased approached defendant on this latter occasion defendant was not in his wagon, but he immediately got into his wagon, where his pistol was located, and when deceased approached him and cursed him and bantered defendant to shoot, defendant did not drive away as he had done on the first occasion, hut complied with the deceased’s request and shot him, and at the time defendant shot deceased, according to defendant’s own testimony, he saw no weapons in the hands of deceased and deceased was doing nothing more than he had previously done, that is, to climb into the hack end of the wagon, with his right hand in his front pants pocket, and defendant, without waiting for further demonstrations upon the part of deceased, and at a time when defendant had no real reason to believe that deceased intended to assault him with any dangerous or deadly weapon, shot the deceased with a 44-caliber Colt’s revolver.

While it is apparent that deceased was not wholly without blame, neither can it be truthfully said that defendant was entirely blameless, according to his own testimony. Deceased at the time of the killing was unarmed, was in his shirt sleeves and wearing his work clothes; and while he was a larger, and perhaps stronger, man than defendant, there is no evidence, according to defendant’s testimony, that deceased intended to make a deadly assault upon him or to do him any great or serious bodily harm.

The taking of human life can only be justified on the ground of self-defense when the danger to defendant, either real or apparent, is imminent, and in this case, viewing the circumstances from defendant’s own standpoint, we are of the opinion that his own testimony does not support the conclusion that he was justified in shooting deceased with a 44-caliber Colt’s revolver on this occasion. He and deceased had been on friendly terms. They were neighbors. Deceased had been to’ the home of defendant and had helped nurse several members of the family of defendant during spells of serious sickness, and while defendant might have known that deceased was high-tempered, he at least also knew that not more than an hour previous to this difficulty he had been able to avoid any serious attack by deceased by merely driving away and leaving deceased alone.

The fact that after the first difficulty defendant armed himself with a deadly weapon, and went to a place where he knew deceased was likely to. see him, was uncalled for and did not show a disposition on the part of defendant to avoid a serious encounter with deceased. When deceased bantered defendant to shoot, defendant shot, and, according to. the testimony of defendant, deceased at that time was not in any position to have caused the defendant any serious bodily injury. While it may be said that defendant is not required to measure to a nicety the danger that appears to him to be imminent, or the force necessary to repel an attack, yet defendant is required, under the law of self-defense, to introduce evidence that tends to create a reasonable doubt that he acted in his own necessary self-defense. The burden is upon defendant to adduce some evidence reasonably tending to support this defense, and if upon an examination of the entire record it appears to this court that defendant was not prejudiced by the exclusion of evidence which would, under some circumstances, be competent where the plea of self-defense is interposed, a judgment of conviction will not be reversed because of the exclusion of such evidence, unless it clearly appears that the error resulted in a miscarriage of justice or deprived the defendant of some constitutional or statutory right. After a careful consideration of the record in this case, and for the reasons stated, we cannot say that the trial court’s-action in this respect was prejudicial.

Certain other alleged errors, relative to the instructions given and the refusal to 'give certain instructions requested by the defendant, are advanced as grounds for-reversal.

We deem it a sufficient answer to these contentions-to say that after a careful consideration of the facts in evidence the testimony is susceptible of only two conclusions: (1) That of the state makes out a clear case of murder; (2) under the testimony of the defendant, he is,, we think, at least guilty of manslaughter in the first, degree. ITo hold that the testimony of the defendant establishes the defense of -justifiable homicide would overturn all well-settled rules and statutes (pointing out the duty of one engaged in a quarrel to avoid the necessity of a deadly attack when in his power to do so, and at most to use only such force as was reasonably necessary to prevent serious injury to himself.

Under the facts in this case, there is no reason to-believe that upon a second trial an intelligent and honest jury could arrive at any other verdict than that of the-guilt of the accused. Under such circumstances, it would be a travesty' upon justice to reverse this judgment upon-technical grounds which tended in no way to prejudice the-substantial rights of the defendant.

For the reasons stated, the judgment of conviction is-affirmed.

DOYLE, P. J„ and MATSON J., concur.


author: DOYLE, P. J.

text:
    FRED AUSTIN et al. v. STATE.
    No. A-3216
    Opinion Filed April 1, 1920.
    Rehearing Denied Jan. 15, 1921.
    (194 Pac. 457.)
    (Syllabus.)
    APPEAL AND ERROR — Absence of Brief — Review. On appeal from a judgment of conviction in a felony case when no briefs are filed or argument presented, this court will make an examination of the record, and if no fundamental error is apparent, and the evidence is sufficient to sustain the conviction, the judgment will be affirmed.

      Appeal from District Court, Garfield County; J. C. Robberts, Judge.

    Fred Austin and Joe Austin were convicted of conducting a gambling game, and they appeal.
    Affirmed.

      H. J. Sturgis, for plaintiffs in error.

      W. C. Hall, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiffs in error were convicted and the punishment of each assessed at imprisonment in the penitentiary for one year and - a fine of $500- on an information which in substance charges that in Garfield county, on or about the 22d day of February, 1917, Fred Austin and Joe Austin did then and there unlawfully, willfully, and feloniously open, cause to ¡be opened, and conducted and carried on a gambling game, which game was played with cards for money, chips, credits, and other representatives of value. From the judgment rendered on the verdict, an appeal was taken by filing-in this court on December 6, 1917, a petition in error with case-made. No (brief has been filed and there has been no appearance on behalf of the defendants on their aippeal.

An examination of the record discloses that no exceptions were taken during the course of the trial. The' testimony of the several witnesses for the state supports the allegations of the information. The testimony of' the defendants and two or three other witnesses tended to support the plea of not guilty. However, the proof on the part of the state seems to have satisfied the jury as to the defendants’ guilt. We find no error affecting the merits of the case.

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

ARMSTRONG and MATSON, JJ., concur.


text:
    W. A. MERRIOTT v. STATE.
    No. A-3293
    Opinion Filed Sept. 11, 1920.
    Rehearing Denied Jan. 15, 1921.
    (194 Pac. 263.)
    1. APPEAL AND ERROR — Review—Conviction on Conflicting: Evidence. In a criminal prosecution, questions of fact are for the trial jury to determine; and, where the evidence is conflicting, a verdict of conviction will not be disturbed1 upon the-ground that it is contrary to the evidence.

      2. APPEAL AND ERROR — Instructions—Necessity for Requests. Where counsel for the defendant believe that the instructions of the court should more definitely or fully state any proposition embraced in the charge, it is the duty of counsel to prepare and present to the court a correct and complete instruction and request that it be given; and, in the absence of such request, this court will not consider an objection that an instruction, correct as far as it goes, does not fully state the law, or that the court failed to instruct upon any given proposition, where the instructions, considered as a whole, embody the law applicable to the case.

      Appeal from District Court, Carter County.

    W. A. Merriott was convicted of assault with intent to do bodily harm by shooting, and he appeals.
    Affirmed.

      Brown & Williams and J. H. 'Mathers, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and E. L. Fulton, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The information in this case charged that in Carter county, on or about the 12th day of April, 1917, W. A. Merriott did shoot one W. V.- Par her with a shotgun with intent of him, the said Merriott, to kill the said Parker. On his trial the jury found him guilty of assault with intent to do bodily harm as charged in the information, and fixed his ¡punishment at imprisonment in the penitentiary for a period of 3 years.

In order to present the questions raised as to the sufficiency of the evidence, and by exceptions reserved to instructions, we will briefly state the testimony in the case.

W. V. Parker testified:

“I am §6 years old. I have a cotton gin at Brock, and my sons have a store there. On the evening of the date alleged I went to my sons’ place of business. I then-went to MoCaskell’s place. I then started up the street, towards Carroll’s store. I was 20 or 30 feet behind Wood Hammer when I saw Dr. Merriott coming from the back door of Carroll’s store. He met Wood Hammer, and they both walked towards the doctor’s buggy. I heard Wood Hammer say, ‘Don’t do that, Doctor.’ I was about 15 feet from them, and Dr. Merriott pulled up- a shotgun and fired and shot off those fingers (indicating). I walked back. I heard another shot sounded like a shotgun. I went into McCaskell’s place, and asked him to bind up my arm. I was there 2 or 3 minutes. I heard three loud reports and five or six lighter reports. I had no weapon of any kind.”

Wood Hammer testified:

“I am a farmer, and run a little mercantile business in Brock. I have lived in that community 22 years. I saw Dr. Merriott that afternoon; he was drinking. He asked me if I had been telling that he had been turning the boys’ names in for the army. I told him I had not. About three-quarters of an hour from that time 1 saw ?him going out the south door of Carroll’s store. It was dusky dark. 1 had started home. I says. ‘Is that you, Doctor?’ He said, ‘Yes; what is it you want?’ He-walked out to where I was and then to his buggy. He picked up a double-barreled shotgun, and wheeled around and told me to stand back. I got hold of the gun before it was fired, and I said, ‘Don’t do that,’ and he pulled it off. The first shot hit Mr. Parker. We scuffled back 10 or 12 feet, when the second shot was fired, and I turned the gun loose and went to the south side of the store, and then another big gun fired. Up to that time there was no small reports. I was unarmed. I never had a cross word with Dr, Merriott. He was drinking, and I grabbed the gun when he threw it up to shoot Mr. Parker, because I thought he might shoot me.”

Carl'E. Parker testified:

“W. V. Parker is my father. My business is general merchandise at Brock. I was in my store when the first shot was fired. I heard 6 or 7 shots. The first two were the loudest. I saw Dr. Merriott that evening at the blacksmith shop; he was staggering, and the way he talked I thought he was drunk.”

Bonnie Clayton testified:

“I am a blacksmith. My shop is the first door south of Carroll’s store, about 30 feet south. Dr. Merriott came in my shop about sundown. He acted like he was drinking. He talked thick-tongued and staggered as he went to the back of the shop. Within an hour I heard the shots fired. I was sitting in my home holding the baby. The first shots were louder than the others.”

C. W. Clayton testified:

“I live a 'block from where this shooting occurred. I was laying down dozing when I heard the first shot. I jumped up and ran to the door just as the second big shot fired, and then the third big shot fired. Then I heard three or four other reports.”

Charles Parker testified:

“I am a teacher. I was in my brother’s store when I heard the first shot. I stepped out on the veranda and off into the street, and I heard that my father was shot. I ran into the store and got a pistol and went, up the street. When near the comer of the blacksmith shop I saw some parties scuffling and the second shot fired. Then Wood Hammer ran south of Carroll’s store, and Dr. Merriott ran to the north side, and turned around and fired at me with a shotgun; I returned the fire. He fired 1 shot at me, and I fired 3 at him. I had six cartridges in my gun.”

Several witnesses testified to meeting Dr. Merriott that evening, and that he appeared to be drunk.

For the defense Lee H. Copeland testified:

“With Dr. Merriott, Whit Carroll, Zack Barker, and Bill Flowers, I went to Ardmore that day in a car to see-about a lawsuit concerning the school at Brock that Charles Parker, a son of old man Parker, was teaching. We left Ardmore about 4 or 5 o’clock, and I got out of the car about a mile from Brock. Mr. Barker and Mr. Flowers got out at the same place. Dr. Merriott was sober when I left him.”

'Two or three other members of the party testified in substance the same.

.Dr. R. H. Henry testified:

“I am a practicing physician at Ardmore. I assisted' Dr. Hardy and Br. Gregory in dressing the wounds that were inflicted on Dr. Merriott on the 12th day of April this year. He was shot a little above the superspinal ¡process, and the bullet came out in front to the right of the navel, and another passed through the muscle of the-leg.” ’ .

John Hughes testified:

“Dr. Merriott occupies the first residence north of Carroll’s store, about 40 steps from, where I live. I was at McCaskell’s place when the shooting occurred. It was about 8:30. There 'were 2 small shots, then a loud one. I followed Loren Hammer out into the street. We went in between the buildings. They kept on shooting. There, were 10 or 12 shots fired. After the shooting we started up the street, and met old man Parker. He said, ‘Boys, I am shot; get a light.’ It is about 70 steps from Parker’s store to Carroll’s store. McCaskell’s place is 5 or 6 steps from Parker’s stoie. Parker’s son came walking down, and said, ‘What is the matter, papa?’ and the old man ¡said, ‘He shot my hand off’.”

D. A. McCaskell testified:

“I was running a restaurant at Brock. W. V. Parker, his son Charley Parker, and Wood Hammer were in my place after dark. Charley Parker said, ‘I believe I will .go home,’ and walked out. Wood Hammer and old man Parker followed about 2 or 3 minutes later. Two or 3 minutes later the shooting commenced. Carroll’s store is 50 or 60 steps from my place. The first 2 shots I heard were small guns; I started to the door, and the big gun fired; I walked to the gallery, and there was continuous shooting. I thought it was an automobile, I started uip there, and met old man Parker, He said he was shot. I said, Who shot you?’ He said, ‘Dr. Mer-riott.’ I wrapped up his hand the best I could, and he started home.”

Whit Ironheart testified:

“My age is 16 years; I am a grandson of Whit Carroll. I held Dr. Merriott’s horses while he and Graham Carroll went into the store. It was mighty dark. I saw old man Parker and Whit Hammer- stop between the store and the blacksmith shop about a half minute. Then Dr. Merriott came out the back door of the store. Hammer asked him where he was going, and Doctor told him he was going to Beardon’s; that his.boy had been kicked in the head by a mule. Doctor came to the buggy, and I turned the horses loose. I heard a gun fire, then another gun fired, and as I got in the door. another gun fired. It stopped a while, and then they commenced shooting sure enough. I could not tell who fired the' first shot. I could not say whether Dr. Merriott had anything in his buggy or not.”

Graham Carroll testified:

“My father has a grocery store at. Brock, and handles a few drugs. I was clerk, and Dr. Merriott had his medicines there. I had occasion to come to the store that evening to let Dr. Merriott in to get some drugs. Dr. Merriott came in a buggy, and stopped the horses in front of the store. He told Whit Ironheart to hold them by the bits. It was just getting dark. We were in the store between 5 and 10 minutes. I saw Wood Hammer looking in the window. When Dr. Merriott went out, Wood Hammer and Mr. Parker were standing out there. Wood Hammer said, ‘Where are you going, Doctor?’ and I saw Wood Hammer follow him; then I heard the shooting. I heard 15 or 20 shots.”

As a witness in his own behalf the defendant testified :

“I have lived at Brock since last November, practicing medicine. I went to Ardmore that day in Mr. Car-rol’s Ford car with other parties. It was late in the evening when I returned. I went to this blacksmith shop; stayed there 2 or 3 minutes; went back to the store where my office was, and had a phone call from Will Beardon that his boy had been kicked by a mule. I hitched up the team and went to the office; got some bandages, and got a double-barreled shotgun. and put it in the buggy. It was loaded with No. 6 shot. I drove to the store; told Whit Ironheart to hold the ponies while I went into the store with Graham-Carroll. I don’t suppose I was in the store over 3 minutes. I heard footsteps on the porch while I was in there, and saw Wood Hammer peep in the window. I went out the side door, and Wood Hammer was standing there. He said, ‘Is that you, Doctor?’ I said, ‘Yes.’ He said, ‘Where are you going?’ I told him I was in a hurry,-and he followed me. As I went to get in my -buggy there was a shot fired from behind. I was shot in the side here. I got the gun out, and Wood Hammer grabbed hold of it. I saw old man Parker with a six-shooter in his right hand, advancing with his other hand extended. The gun 'discharged. That was the last I seen of Parker. I did not shoot old man Parker. Wood Hammer had hold of the gun when it went off. That was the only shot fired out of my gun. I jerked it loose from Wood Hammer, and Charles Parker came out from behind the north side of Carroll’s store and opened fire on me. Before I ran, my gun snapped twice. As I went home; I was shot in the thigh. It was a flesh wound. To the best of my knowledge there were about 18 shots fired at-me. I was confined four days in Dr. Hardy’s- Sanatorium. After that I dressed the wounds myself. I had been: warned that these parties were going to get me. I had not been drinking, and I was not .drunk. I had lived at Hoxbar in this county, and had trouble there. They had a. charge of larceny against me, and when the trial came-off the counsel I had employed fell down on me, and the judge put me to trial without counsel or witnesses. I got sent to McAlester, I stayed there about 14 months, and the Governor paroled me.”

It is obvious that the case was one for the jury. It was for the jury to judge of the weight of the evidence, and the credibility of the witnesses. This court has uniformly held that when the inference of guilt can be reasonably drawn from the evidence it w-ill not interfere with the verdict on the ground of want of evidence to support it.

The court of its own motion gave 13 instructions, and in addition thereto gave the only instruction requested by the defendant. The instructions given properly define the crime of assault by shooting another with intent to kill, and the included offense of assault by shooting another with intent to injure, although without intent to kill. The court instructed the jury upon the presumption of innocence, and that:

“It is incumbent upon the state to prove every material fact necessary to the conviction of the defendant beyond a reasonable doubt.”

Among other instructions given are the following:

“The defendant in this cause, in support of his plea of not guilty, interposes what is known in law as the plea of self-defense, that is, if he did shoot and wound the said W. V. Parker he did so in the defense of his own person and to prevent the said W. V. Parker and others from assaulting him with pistols. The defendant does not-admit that he fired the shot that wounded the said Parker, but he does admit that he took the gun from his buggy for the purpose of protecting himself against the unlawful assault made upon him by the said Parker and others, and that when he grabbed his gun for such purpose of his own defense the witness Wood Hammer grabbed the gun while it was in the hands of the defendant, and that while in a struggle between himself and the witness Wood Hammer for the possession of the gun it was discharged, and ¡wounded the said Parker, that if he, the defendant did fire the shot and wound the said Parker, that it was done in the resistance of an unlawful attack made upon himself (by the said Parker and others. In this connection you are instructed that self-defense against unlawful personal violence or threatened personal violence is the right of every person when unlawfully assaulted by another, and such person when so unlawfully assaulted has the right to resist such assault with such force as may be necessary to repel it. (Excepted to by defendant and exception allowed. W. F. Freeman, Judge.)

“If you believe from the evidence ibeyond a reasonable doubt that the defendant, in the county and state aforesaid, and at the time aforesaid, did unlawfully make an assault upon the said W. V. Parker by shooting and wounding him without justifiable or excusable cause therefor, but you should entertain a reasonable doubt that said shooting was done with intent to kill, and you should believe beyond a reasonable doubt that said shooting was done without justifiable or excusable cause, and was done with the intent to injure the said Parker, that said shooting was done with the intent to do bodily harm to the said Parker, then in such case you should find the defendant guilty of an assault to do bodily harm, and assess his punishment at confinement in the state prison for a term not to exceed 5 years, or by imprisonment in the county jail not to exceed one year. (Excepted to by defendant and exception allowed. W. F. .Freeman, Judge.)

“You are told that, even though you should find that the defendant did shoot and wound the said Parker with a gun in the manner and form, and at the time and place alleged in the information filed herein, but that when such Shooting and wounding was done on the part of the defendant that said witness W. V. Parker and others, or any of them, were assaulting him with pistols or other deadly weapons, or were attempting to so assault him, .then in that case such wounding and shooting on the part of the defendant would be justifiable under the laws of this state, and if you so find from the evidence' and circumstances of this case, you will find the defendant not guilty, and so say by your verdict.”

It is contended:

“'That the court did not instruct the jury, on the law applicable to the theory of the defense, and that the court cast the burden of proving his innocence upon the defendant.”

We do not think that there is any merit in this connection. The instructions as a whole embody the law as applicable to the case, and they contain no such erroneous statement of the law as was likely to mislead the jury. Where counsel for a defendant believe that the instructions of the court should more definitely or fully state any proposition embraced in the charge, it is the duty of counsel to prepare and present to the court a correct and complete instruction, and request that it be given, and in the absence of such request this court will not consider an objection that an instruction, correct as far as It goes, does not fully state the law or that the court failed to instruct upon any given proposition, where the instructions, considered as a whole, embody the law applicable to the case.

Upon consideration of the whole case the .court is satisfied that the substantial rights of the defendant have not been prejudiced by reason of any error of law appearing in the record. The judgment of the district court of Carter county is -therefore affirmed.

ARMSTRONG and MATSON, JJ., concur.


author: MATSON, J.

text:
    C. P. WINFIELD v. STATE.
    No. A-3364
    Opinion Filed Aug. 16, 1920.
    Rehearing Denied Jan. 15, 1921.
    (191 Pac. 609.)
    (Syllabus.)
    1. INDICTMENT AND INFORMATION — Name of Defendant. It is not essential to the validity of an indictment or information that the name of the defendant be correctly stated. Any error in pleading the name of a defendant in an indictment or information must be corrected upon the arraignment of that particular defendant, and the record thus made is a protection to every defendant jointly indicted or informed against with such defendant, and would be a complete protection to either or all defendants against a subsequent prosecution for the same offense.
    2. INDICTMENT AND INFORMATION — Included Offenses— Robbery. Where there is a prosecution and conviction of robbery in the first degree, it is immaterial that the evidence would authorize a conviction of a codefendant of the commission of conjoint robbery as robbery in either the first or second degree is necessarily included in the commission of a conjoint robbery, and, where the evidence on the part of the state elearly establishes all the essential elements of robbery in the first degree against the defendant on trial, he may be prosecuted and convicted of that included offen.se; such conviction being a bar to any subsequent prosecution for robbery conjointly committed in the same transaction.
    APPEAL AND ERROR —Harmless Error — Evidence. The admission of immaterial evidence is not ground for reversal, unless the defendant was prejudiced by its admission.
    WITNESSES — Questions to Discredit. A witness may not be ashed, for the purpose of discrediting him, whether or not he has ever been charged with or arrested for crime.
    APPEAL AND ERROR — Necessity for Record of Excluded Evidence. When a defendant seeks a reversal on account of an alleged error of the trial court in refusing to admit evidence offered, the record must show what this 'offered evidence would have been, so that this court may determine whether or not it was material and proper testimony, and as to whether or not the defendant was injured by its exclusion. «71
    WITNESSES — Questions to Discredit. A witness may, on cross-examination, be asked whether or. not he has ever been convicted of a felony, or any misdemeanor which involves moral turpitude.
    SAME — Conviction of Assault and Battery. The conviction of a witness of the crime of assault and battery is not the conviction of a misdemeanor involving moral turpitude.
    APPEAL AND ERROR — Burden to Show Error — Cross-Examination. The scope of the cross-examination of a witnéss is largely a matter of discretion with the trial court, and the burden is upon the appellant to show that the trial court erred in excluding evidence offered in connection with the cross-examination of a witness.
    APPEAL AND ERROR — Discretion of Trial Court — Continuance. Applications for a continuance are addressed to the sound discretion of the trial court, and a conviction will not be reversed because the trial court overruled such an application unless a manifest abuse of such discretion appears.- For reasons holding no manifest abuse of discretion shown in overruling application for continuance in this case, see body of opinion.
    SAME — Discretion in Reopening Case. It is discretionary with the trial court to reopen the case after both sides have closed for the purpose of introducing further evidence; and, unless a clear abuse of such discretion appears, no question is presented for review on appeal.
    11. EVIDENCE — Circumstantial Evidence to Corroborate Accomplice. Evidence corroborating an accomplice and tending to connect the defendant with the commission of the crime, need not be direct, but may be circumstantial only.
    12. SAME — Sufficiency for Jury. If the evidence offered in corroboration of an accomplice tends to connect the accused with the commission of the crime, its sufficiency is for the jury to decide, where the law applicable to an accomplice’s testimony is* fully and fairly covered in the court’s instructions.

      Appeal from District Court, Pushmataha County; C. E. Dudley, Judge.

    C. P. Winfield was convicted of robbery in the first degree, and he appeals.
    Affirmed.

      Warren & Warren and John Cocke, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and E. L. Fulton, Asst. Atty. Gen., for the State.
   MATSON, J.

This is an apepal from the district court of Pushmataha county, wherein the defendant, C. P. Winfield, was jointly informed against together with Ida Rankin, A. Baer, and Henry McClair, charged with robbery in the first degree, in that on the 24th day of May, 1917, in Pushmataha county, the said defendant, by the use of certain deadly weapons, etc., put one A. H. Palmer and W. E. Bailey, who were respectively the: president and cashier of the First 'State Bank of Tus-kahoma, Okla., in fear of 'Unlawful and immediate injury to their persons, and took from the possession of said parties $2,000 in money, the property of the First State Bank of Tuskahoma.

The defendant C. P. Winfield demanded a severance, and upon a separate trial was convicted, and the punishment assessed by the jury at five years’ imprisonment in the state penitentiary. Upon this verdict,' the court pronounced judgment of guilty of rofolbery in the first degree against the defendant, after overruling defendant’s motion for a new trial, and sentenced the defendant to imprisonment in the state penitentiary for the period of five years. From this judgment of conviction the defendant has appealed to this court, and assigns various errors, which will be hereafter considered.

The first error assigned and relied upon for reversal may be summed up succinctly as follows: Error of the .court in refusing to direct a verdict of not guilty because of a fatal variance between the allegations in the information and the proof adduced. The information alleged that Ida Rankin, A. Baer, C. P. Winfield, and Henry McClair committed the alleged robbery. Upon the trial, the evidence disclosed that the true name of one of the defendants was not Henry McClair, but Henry Clair, and it is strenuously'contended that the proof of the true name of the defendant jointly informed against was a material allegation of the offense, and the failure of the state to prove the true name of the co-defendant to be identical as. alleged in the information constituted a fatal variance between the allegations and the proof, and entitled the defendant to be acquitted because of said variance. With this contention, we are unable to agree. It is not essential to the validity of an indictment or information that the name of the defendant be correctly stated. If Henry Clair was informed against by a name other than his true name, section 5775, Revised Laws 1930, requires that when arraigned he must be informed of the name by which he is prosecuted, and if such name be not his true name he must then declare his true name or be proceeded against by the name in the indictment or information; and section 5777, Revised Laws 1910, further provides that if upon arraignment the defendant alleges another name to be his true name, the subsequent proceedings on the indictment or information may be had against him by that name, referring also to the name by which he is indicted or informed against. It is apparent, therefore, that the defendant Henry Clair could not take advantage of the fact that the pleader had informed against him in the name of Henry MoClair. Williams v. State, 14 Okla. Cr. 100, 167 Pac. 763.

If it was not material as to Henry Clair that he be informed against in his true name, by what process of reasoning may it be successfully contended that it was material to any other defendant jointly informed against with him, who was a principal in the same transaction? It was not essential, or was the state required to prove, in order to convict this codefendant separately tried, that the true names of the other defendants were correctly pleaded in the information. Any error in pleading the name of a defendant in an indictment or information is required, under the Criminal Code of this state, to be corrected upon the arraignment of that particular defendant, and the record thus made is a protection to every defendant jointly indicted or informed against with such defendant, and would be a complete protection to either or all defendants against a subsequent prosecution for the same offense.

The conclusion is reached, therefore, that the variance between the allegations of the information and the proof adduced as to the name of the codefendant was immaterial, and not fatal to the conviction of this defendant, and that the trial court did not err in overruling the motion to direct a verdict or the motion for a new trial because of such alleged variance, as this defendant, under the foregoing protective provisions of the Penal Code, could not have been misled as to the identity of the person jointly informed against with him and charged with the commission of this alleged offense.

Furthermore, it is contended:

“A person, not present, aiding another to commit conjoint robbery, cannot be punished for conjoint robbery.”

In this connection, counsel for the defendant contend that the offense, if any, charged against the defendant is that of conjoint robbery, and that section 2373, Revised Laws 1910, provides:

“Whenever two or more persons conjointly commit a robbery or where the whole number of persons conjointly committing a robbery and persons present and aiding such robbery amount to two or more, each and either of such persons is punishable by imprisonment in the penitentiary for not less than five years nor more than fifty years.”

Had the defendant been charged with and convicted of conjoint robbery, there might, possibly be some merit in this contention. The record, however, shows that the defendant was informed against for robbery in the first degree, and that the verdict and judgment rendered against him was for a conviction of robbery in the first degree. The contention is based, therefore, on the false assumption that the defendant was charged with and convicted of conjoint robbery, and the premise taken to that effect not ¡being supported by the record, the contention must fall with it.

Before there can be a conviction of conjoint robbery, as provided for in section 2373, supra,, the proof must show that there was a robbery committed in one or other of the degrees set out in section 2370. The information in this case does not attempt to charge these defendants with the conjoint commission of the robbery, but does set out facts sufficient to charge them as principals in the commission of a robbery committed in the first degree. While there may be evidence in the record which would authorize the conviction of the defendant Henry Clair of the commission of conjoint robbery, that fact would not preclude the state of the right to prosecute the other defendants for the commission of robbery in the first degree, as the crime of robbery is necessarily included in any event, and the evidence on the part of the state, in this case clearly establishes all the essential element® of robbery in the first degree, as defined in the Penal Code.

.It is also contended that the trial court erred in admitting the evidence of P. W. Hudson, the court clerk, which was to the effect that upon arraignment of Henry McClair on the 7th day of July, 1917, he had stated in open court his true name to be Henry Clair, and the court had ordered the case to be proceeded against him in the name of Henry Clair, and the minutes of the court in this cause were to that effect.

While this evidence may have been immaterial, it in no way tended to prejudice the substantial rights of ¡the defendant, but, on the contrary, showed conclusively that the codefendant, Henry Clair, informed against in the name of Henry McClair, had some seven months prior to the arraignment of this defendant declared in this proceeding his true name to be Henry Clair, and that this defendant was not, at the commencement of his trial, in any way misled by the mistake in the information as to .the name of such codefendant. We find no error prejudicial to the substantial rights of the defendant in the admission of this evidence.

The eighth, ninth, eleventh, twelfth, thirteenth, and fourteenth assignments of error are grouped together and treated in the brief as one assignment. They are as follows :

“Eighth. Because the court erred in refusing to permit the plaintiff in error to show by the witness Ida Rankin, that she was being prosecuted in Choctaw county, Oklahoma, for the crime of receiving stolen property from a bank robbery, and that the case was to be dismissed against her on account of her testifying in this case.”

“Ninth. Because the court erred in sustaining the objection of the defendant in error to the question propounded to the witness Ida Rankin by the plaintiff in error, wherein the question was asked, ‘That you was not to be prosecuted in this case, or in the case in Choctaw7 county, in which you are charged with receiving money stolen from a bank robbery.’

“Eleventh. Because the court erred in sustaining the objection of the defendant in error to the question propounded to the witness Ida Rankin, to wit, ‘What are you expecting of the officers of this county and of Choctaw county to- do with you testifying in this case?’

“Twelfth. Because the court erred in refusing to per-init the plaintiff in error to show by the witness Ida Rankin that she had 'been convicted by- the court of Choctaw county of the offense of ‘tarring and feathering, a. woman.’

“Thirteenth. Because the court erred in not- permitting the plaintiff in error to show by the witness Ida Rankin that Jimmy Adams‘had ju:st returned from the penitentiary, and that the witness knew it, and that Adams was staying at her house.

“Fourteenth. Because the court erred in sustaining the objection to the question of the plaintiff in error, propounded to the witness, Ida Rankin, to wit: ‘Did you know at the time that you and Shorty Adams and Grover Merrill and Mr. Winfield was having this conversation that Ben Willis was an escaped convict from the penitentiary of McAlester, Okla.?’ ”

The foregoing assignments of error, which are treated together in the brief of counsel for defendant, all relate to alleged errors of the court, in limiting . the cross-examination of the state’s witness, Ida Rankin, a self-confessed accomplice to the crime.

The eighth assignment of error is without merit fpr two reasons: (1) Because it has ¡been repeatedly held by this court that a witness may not be asked for the purpose of discrediting him that he has ever been charged or arrested for crime. Porter v. State, 8 Okla. Cr. 64, 126 Pac. 699; Slater v. U. S., 1 Okla. Cr. 275, 98 Pac. 110; White v. State, 4 Okla. Cr. 143, 111 Pac. 1010, Musgraves v. State, 3 Okla. Cr. 421, 106 Pac. 544; Price v. U. S., 1 Okla. Cr. 291, 97 Pac. 1056. (2) As to that feature of the assignment which relates to the question of whether the witness was to receive any immunity from prosecution, either in a criminal cause pending against her in Choctaw county for the leri-me of receiving stolen property, or from prosecution in this cause in which she was jointly informed against, there |was no offer to prove that the witness would answer, if permitted to do so, that she had been promised immunity from either of such prosecutions; while on the contrary, the court did permit the witness to be asked if Mr. Fitzgerald, the sheriff of Chocta|w county, had not promised the witness that she would not be punished in this case, or in the lease against her in Choctaw county, if she testified against Mr. Winfield in this case, and the witness replied that she had not received any such promise.

This court has repeatedly held, in substance:

“When a defendant seeks a reversal on account of an alleged error on the part of the trial court in refusing to admit evidence offered, the record must show what this offered evidence was, so that this court can determine whether or not it was material and proper testimony, and as to whether or not the defendant was injured by its ex-elusion.” White v. State, supra; Stouse et al. v. State, 6 Okla. Cr. 415, 119 Pac. 271; Warren v. State, 6 Okla. Cr. 1, 115 Pac. 812, 34 L. R. A. (N. S.) 1121.

The ninth assignment of error is covered by what has been said relative to the eighth assignment.

The eleventh assignment of error is without merit, for the reason that the question is purely speculative, and, if intended to elicit evidence which would show the witness’ interest in the result of this trial, the question should have been so framed as to call the witness’ attention to some definite promise of immunity from prosecution, and it may be further stated in this connection that there was also no offer to prove any specific evidence which would naturally follow as an answer to the question.

The twelfth assignment of error relates to the refusal of the court to permit counsel for the defendant to show by the witness, Ida Rankin, that she had been convicted by the courts of Choctaw county of the offense of “tarring and feathering” a woman. (The record relative to this assignment is as follows:

“Q. How long had you knolwn Jimmy prior to the time that he came to board at your house? A. About a week, something like a week or two weeks, something like that.

“Q. Where did you first meet him? A. I met him in Lawyer Cocke’s office in Hugo. (At this time the court and counsel confer out of hearing of the jury and court reporter.)

“By Mr. J. H. Warren (at the conclusion of said conference and out of hearing of the jury) : Defendant offers to show by this witness that witness has. been convicted by the courts of Choctaiv county of the offense of tarring and feathering a woman, and the witness will testify, if permitted to testify, that she has been so convicted, which the court overrules, and the defendant excepts.”

While no direct question was asked the witness as to whether or not she had been previously convicted of any offense in any court of Choctaw county which was objected to, and the objection sustained by the trial court, nevertheless this assignment will be treated as if such question had been asked and the objection sustained.

This court has repeatedly held that a witness may, on cross-examination, be asked whether or not he has ever been convicted of a felony or any misdemeanor which involves moral turpitude. Slater v. U. S., supra; White v. State, supra; Nelson v. State, 3 Okla. Cr. 468, 106 Pac. 647.

There is no offense known to the law of this state designated or defined as “tarring and feathering.” Whether the question related to the previous conviction of the witness for a felony or a misdemeanor is not disclosed by the record. In order to discredit a witness because of a previous conviction either for a felony or for a misdemean- or involving moral turpitude, the witness is entitled to be asked the direct question as to his conviction for a certain specific offense, and the court in which he wfas convicted, in order that the witness may be fully protected in the answer made to the question, and may be fully informed as to what the cross-examiner expects to prove against the witness as to such conviction.

It may be surmised in this instance that the cross-examiner referred to the conviction of the witness of the crime of assault and battery. A conviction of such misdemeanor does not involve moral turpitude. Gillman v. State, 165 Ala. 135, 51 South. 722; Pollok v. State (Tex. Cr. App.) 101 S. W. 231; Brittain v. State, 36 Tex. Cr. 406, 37 S. W. 758; State v. Prendible, 165 Mo. 329, 65 S. W. 559.

The burden is upon the appellant to show that the trial court erred in excluding this evidence; and, unless it is made affirmatively to appear that the defendant would have been able to prove that the witness had been previously convicted either of some felony or of some misdemeanor involving moral turpitude, this court cannot say, under such an incomplete record as this, where the scope of cross-examination is so largely a matter of discretion with the trial court that there has been a manifest abuse of such discretion in refusing to permit the defendant's-counsel to cross-examine the witness on this subject.

The thirteenth .assignment of error relates to the. refusal of the trial court to permit counsel for the defendant to show by the witness Ida Rankin, that Jimmy Adams (Henry Clair) had just returned from the penitentiary, and that the witness knew such fact, and would so testify, and knowing such fact, witness permitted' said Adams to stay at her house for some six weeks prior: to the commission of this alleged offense.

The record relative to this assignment of error is as: follows:

“Q. You knew at that time that Shorty Adams had served a term in the penitentiary, didn’t you? (State objects; incompetent, irrelevant, and immaterial. Which said objection is iby the court sustained, to which ruling of the court defendant then and there duly excepted at the time. At this time court and counsel confer out of the hearing of the jury and reporter.)

“By Mr. J. H. Warren (at the conclusion of said conference and out of the hearing of the jury) : Now comes the defendant and offers to show by the witness that Jimmie Adams was or had just served a term in the penitentiary, and had just returned from the penitentiary, and that the witness knew it, and that witness would so testify, and that Adams was staying at her house, and had been for the time she had testified to, she knofw-ing that he was just recently returned from the penitentiary.”

It is the opinion of the court that the exclusion of this- evidence was erroneous. On cross-examination, a witness- may be - asked, for the purpose of affecting his credibility, -as, to his associations with other persons of known bad repute. If a witness knowingly' associates' with ex-convicts the jury is entitled to know that fact, because the jury is the exclusive judge of the credibility of all the witnesses in a criminal cause.

However, the Legislature of this state, by express enactment, has precluded this court from reversing a cause, solely because of the erroneous admission or exclusion of evidence unless this court finds, after an examination of the entire record, that the error has, probably resulted in a miscarriage of justice, or has deprived the defendant of some constitutional or statutory right. Section 6005, Revised Laws 1910.

In this instance, the witness sought to be discredited was a self-confessed accomplice to the crime. She admitted ttiat the entire plan to rob the First State Bank of 'Tuskahoma was evolved and concocted in her house, a.nd- that she was a party to the scheme, and, according to.) the terms of the conspiracy was to -profit from the proceeds of the robbery. Her entire cross-examination discloses ..her'intimate relationship with Jimmie Adams (Henry Clair). She- admits that Adams,- o'r Clair, stayed at h’er. house for a period of six weeks immediately prefixing the robbery, and that during that time the robbery whs there planned and later carried into execution. She fully detailed to the jury her connection therewith, and made; a¡ clean breast of her perfidy. The mere fact that thes court did not .permit her to testify that she knew that Adams, or Clair, was an ex-convict, in the light of the disclosures made by her could have detracted but little from her standing before the jury. Her siworn confession of connection with this robbery branded her as a felon, and an associate of felons of the worst type. From that standpoint she stood fully discredited before the jury, whether or not she knew that Adams, or Clair, was am. ex-convict.

IThe conclusion is reached, therefore, that while the" subject-matter of the question was, a proper one of inquiry on cross-examination for the purpose of 'affecting; the credibility of the witness, the exclusion of the evidence offered cannot be considered a reversible error in this case, in view of the fact that the- witness, by her own confession and admissions stood thoroughly discredited by questions asked and answers made on similar-subjects of inquiry, so that the error complained of, under the express provisions of section 6005, supra, cannot be held to be reversible in this case.

The fourteenth assignment of error is clearly without merit: (1) There was no offer to show that the witness knew that Ben Willis was a escaped convict; (2) on the contrary, the record of the witness’ cross-examination discloses that she knew nothing about the antecedents or history of Ben Willis.

The fifteenth assignment of error relates to the cross-examination of one Ben Fitzgerald, a witness for the istate, the sheriff of Choctaw county, to whom the accomplice, Ida Rankin, first made her confession. The following question was asked: “Are you expecting a reward should he (defendant) be convicted for this crime?” Counsel for the state objected to the question, and the objection was sustained, to which action the defendant excepted.

There was no offer to prove -what the answer of the witness ‘ would have been had the court permitted an answer to have been made. The question here involved is considered under the eighth assignment of error, supra. Furthermore, it may be stated that the court permitted the witness Fitzgerald to be examined upon the question of. a reward in the event of the conviction of the defend ant, and the witness had previously testified that he had received no promise of any reward in the event of the conviction of this defendant. As to whether he expected to receive a reward in the future where no promise of any had ibe.en made to him was extremely speculative, in view of the fact that no question was asked as to whether any reward had been offered for the conviction of the defendant, and the action of the court in sustaining the objection to the question under such circumstances was clearly not erroneous.

It' is also contended that the trial court erred in overruling' .the application and motion of the defendant for a continuance of said cause. This application is based on- the action of the county attorney in indorsing the name of- Ida Rankin, a codefendant, on the information as a witness to be used in chief against this defendant. The name of Ida Rankin was indorsed on the information on the day the case was called for trial, and the defendant claimed that he was surprised thereby, and that the witness Ida Rankin had theretofore at all times claimed that she kneiw nothing incriminating against the defendant Winfield; that since her name had been indorsed on the information, counsel for the defendant bad learned from the witness Ida Rankin that she expected to swear to enough facts against this, defendant to convict him, and that if given an opportunity, the' defendant could produce witnesses to disprove the testimony of Ida Rankin, and also could get witnesses to show that the said Ida Rankin was .angry with the defendant and his wife, and was thereby, personally prejudiced against this defendant.

The record shows that the only witness named by the defendant by whom he expected to contradict the witness Ida Rankin as to any specific testimony of said witness directly connecting this defendant with the commission of the crime was one Gus. Ashley, and it appears that the said Gus Ashley was produced and testified in behalf of the defendant. It also appears that other witnesses were produced by the defendant, who testified to statements made by the witness Ida Rankin, which were denied by her, showing her animosity against the defendant and his wife, soi that the action of the court in denying the application for a continuance did not operate to deprive the defendant of the evidence which he stated he could bbtain had the continuance been granted.

. Applications for a continuance- are addressed ?to the. sound discretion of the trial court, and a conviction will not be reversed because the trial court overruled such an application, unless a manifest abuse of such discretion appears. Reed v. State, 14 Okla. Cr. 651, 174 Pac. 800.

As this.record discloses that the defendant was able to produce the only witness named in the application for a continuance by whom he expected to prove facts contradicting the said Ida Rankin, and also as the record discloses that other witnesses not named in the application were produced to prove the other facts which the defendant alleged could have been proven had a continu-anee been granted.,' it is- clear that the trial court did no prejudice to the defendant in this instance by overruling the motion for a continuance.

It is also contended that the trial court erred in not reopening the case, after both sides had closed, for the purpose of permitting the defendant to introduce oneDuff Coker as a (witness to contradict the witness -Ida Rankin.

It was within the discretion of the trial court to reopen the case for this purpose; and, unless a clear abuse of discretion appears, no question is presented for review on appeal. Fred Felice v. State, 18 Okla. Cr.—, 194 Pac. 251; Shires v. State, 2 Okla. Cr. 89, 99 Pac. 1100; Hampton v. State, 7 Okla. Cr. 291, 123 Pac. 571, 40 L. R. A. (N. S.) 43; Wood v. State, 11 Okla. Cr. 176, 144 Pac. 391; Dix v. State, 15 Okla. Cr. 559, 179 Pac. 624; Tingley v. State, 16 Okla. Cr. 639, 184 Pac. 599.

After the close of the case, the defendant offered to introduce the testimony of Duff Coker, and in the offer stated that the defendant knew nothing about the fact that the said Duff Coker would testify to certain matters contradictory of the witness Ida Rankin until 9 o’clock of the morning of the day on which the witness was offered; that defendant learned of such fact from one of his counsel, and thereafter immediately proceeded to have the said witness called, by telephone at his residence at Ft. Towson, Okla., a distance of 35 miles from the city of Antlers, the place of the trial; that the said witness immediately responded, but arrived in court after the case had been closed by both sides.

There is no showing as to how long counsel for the defendant had known of the facts which, it is alleged, the said Duff Coker ¡would testify to. We are of the opinion that no manifest abuse of discretion is shown by the action of the trial court in refusing to reopen the case to permit the defendant to introduce this witness in his behalf, for the reason that no reasonable diligence is shown to procure the attendance of the witness an an earlier time, and for the further reason that the evidence offered is cumulative of other evidence adduced by the defendant tending to contradict the witness Ida Rankin.

It is also contended that the trial court erred in refusing to instruct the jury to return a verdict of not guilty, because the evidence is insufficient to sustain the conviction. The conviction is based largely upon the testimony of Ida Rankin, a self-confessed accomplice to the crime, and it is here contended, that the statute requiring the testimony of an accomplice to be corroborated by other evidence tending to connect the defendant with the commission of the crime is not met in this case.

In the ease of Moody v. State, 13 Okla. Cr. 327, 164 Pac. 676, this court held:

“Evidence corroborating an accomplice and tending to connect the defendant with the commission of the crime heed not be direct, but may be circumstantial only.”

Furthermore, it has been held:

“If the evidence offered in corroboration of an accomplice tends to connect the accused with the commission of the crime, its sufficiency is for the jury to decide.” Alderman v. Territory, 1 Okla. Cr. 562, 98 Pac. 1026; Hill v. Territory, 15 Okla. 213, 79 Pac. 757; McGill v. State, 6 Okla. Cr. 512, 120 Pac. 297.

An examination of the record in this case discloses circumstantial evidence which tends strongly to connect the defendant with the commission of this crime, and also contradictory statements on his part which are indicative of guilt.

The trial court instructed the jury that the witness Ida Rankin was an accomplice, and that no conviction could be had on her testimony alone, that her testimony must be corroborated by other evidence which tended to' connect this defendant with the commission of the crime. We think the court fully and fairly cohered the law applicable to an accomplice’s testimony, and the necessity of the corroboration of such a witness, in the instructions-given in this case. The question of the sufficiency of the' corroboration, the court having instructed the jury properly as to the law, was exclusively the province of the jury,, and this court is not authorized to substitute its judgment, for that of the jury under such circumstances.

Finding no error in the record sufficiently prejudicial, to authorize a reversal of this judgment, it is the opinion of the court that the judgment of the district court of Pushmataha county in this case should be affirmed % and it is so ordered.

DOYLE, P. J., and ARMSTRONG, J., concur.


text:
    LOGAN PARKS v. STATE.
    No. A-3526
    Opinion Filed May 18, 1920.
    Rehearing Denied Jan. 15, 1921.
    (194 Pac. 281.)
    (Syllabus.)
    HOMICIDE — Assault with Intent to Kill — Sufficiency of Evidence. It is only when there is no substantial evidence to support the-verdict that the appellate court will reverse on the ground of insufficient evidence. In this case the evidence examined and1 held sufficient to support the verdict of guilty of assault with intent tol kill by shooting another with a shotgun.

      Appeal from District -Court, Hughes County; Geo. C. Crump, Judge.

    Logan Parks, was convicted of an assault with intent: to kill, and he appeals.
    Affirmed.

      J. L. Skinner, for plaintiff in error.
    The Attorney General and W. C. Hall, Asst. Atty.. Gen.-, for the State.
   DOYLE, P. J.

Plaintiff in error, Logan Parks, was-convicted in the district court of Hughes county on an information charging that he did assault with intent to kill, one Walter Taylor -by shooting him withj a shotgun, and. his punishment was fixed at imprisonment in the penitentiary for a term of two years. From the judgment rendered on the verdict he appealed by filing in this .court on April 12, 1919, a petition in error with case-made. The errors assigned question the sufficiency of the evidence to sustain the verdict. The testimony on the part of the state tended to show that on the day named in the information Walter Taylor was returning’ to his home from the town of Yeager, on horseback, carrying some groceries under his arm; riding along the road with him was a friend on horseback; they' saw the defendant, Logan Parks, standing by the side of the road, and as they passed Logan Parks raised a double-barreled shotgun and shot Taylor. Just before he was shot 'Taylor said, “Don’t .shoot me, Mr. Logan; don’t shoot me.” Taylor dismounted, and as he ran down the road crying for help the defendant shot him again, the charge entering his back.

As a witness in his own behalf the defendant testified that his wife was a sister of Walter Taylor; that he had a great deal of domestic trouble by reason of Taylor interfering in his family affairs; that on the night of . the shooting he had been over in his cotton patch and around by the field carrying a double-barreled shotgun to shoot rabbits, and stopped at Mr. Moore’s, something like half a mile from his home; that he left Mr. Moore’s and was walking up the road when Walter - Taylor and Gordan Lee rode up, behind him, and when they passed Taylor stopped and seemed to be pulling a gun, and he fired both barrels at Taylor in self-defense; that when Taylor left he picked up a Colt’s 38 special from the roadside where Taylor' was when he fired the shots; that no word was spoken by either until the shots were fired.

Aside from the testimony of the defendant in support of the self-defense theory, all the evidence in the case shows that at the time the defendant fired the shots the complaining witness Taylor was committing no act and making no demonstration to indicate that he was about .to attack .the defendant. In our opinion, the evidence for the state fully sustains the conviction.

Finding no prejudicial error in the record, the judgment is affirmed.

ARMSTRONG and MATSON, JJ., concur.


text:
    HUGH TODD v. STATE.
    No. A-2705
    Opinion Filed Jan. 18, 1919.
    Rehearing Denied Jan. 15, 1921.
    (194 Pac. 253.)
    (Syllabus.)
    APPEAL AND ERROR — Sentence—Modification. A careful examination of the entire record fails to disclose that any errors prejudicial to the defendant were committed in his trial, but, as the ends of justice will be met thereby, the punishment-awarded the defendant is modified under authority of Rev. Laws--1910, § 6003 (Penal Code.)

      Appeal from County Court, Canadian County; R. B. Forrest, Judge.

    Hugh Todd was convicted of unlawfully having in-possession intoxicating liquors with intent to sell, and appeals.
    Modified and affirmed.

      J. N. Roberson, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst.. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, Hugh Todd,. hereinafter referred to as defendant, was convicted of the offense of unlawfully having in his possession intoxicating liquors with, intent to sell the same, and sentenced to be confined in the jail of 'Canadian county for five months, and to pay a fine of $500 and the costs of the prosecution. To reverse the judgment rendered, the defendant prosecutes this appeal.

The charging part of the information is as follows:

“That one H|ugh Todd, on the 4th day of December, 1915, at and within the county of Canadian, state of Oklahoma, did then and there willfully and unlawfully have possession of intoxicating liquors with the intention of selling, bartering and otherwise furnishing same, contrary to the form, of 'the’statute in such cases made and provided, against the peace and dignity of the state.”

While the overruling of a demurrer to the information is assigned as error, an examination of the record disclosed that a demurrer to the information was not in fact interposed. The information, as has been many times held by.this court, is sufficient, and the uncontradicted evidence, which we deem unnecessary to recite, fully establishes the guilt of the defendant, against which the defendant did not offer any evidence.

Influenced by the indirect recommendation of the Attorney General, as shown in his brief, that the sentence in this case be modified, we have carefully examined the entire record in the case; and, iwhile we find the record entirely free from prejudicial error, we think that the ends of justice will be properly met by a modification of the said judgment.

It is therefore ordered! by this court that the judgment rendered in this case be modified, and that, in lieu of the judgment rendered of $500 fine and five months* imprisonment in the county jail at hard labor, the defendant is liereby sentenced to imprisonment in the county jail of Canadian county for 75 days, and to pay a fine of $200,'and to pay the costs of this prosecution, and upon failure to pay the said fine and costs, that the defendant be further confined until said fine and costs are satisfied as by law provided.

The judgment of the trial court as herein modified is affirmed.

DOYLE, P. J., and MATSON, J., concur.