author: EDWARDS', P. J.

text:
    VELMA BAXTER v. STATE.
    No. A-6583.
    Opinion Filed May 11, 1929.
    (277 Pac. 287.)

      ■Morris & Tant, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   EDWARDS', P. J.

The plaintiff, in error, hereinafter called defendant, was convicted in the district court of Oklahoma county on a charge of shooting with intent to. kill, and her punishment fixed at a term of four years in the state penitentiary.

At the time charged defendant was the wife of Ed Baxter, the deceased. They were negroes living at Oklahoma City. On the afternoon of that day deceased was at the home of another negro and defendant went to the place and called him out and fired five shots at him with a revolver. Her aim was poor and only the last shot took effect, that in the hip. Baxter was taken to the hospital and died that night. The defendant admitted the shooting, but claimed the shots were fired in her necessary self-defense and offered other evidence supporting her claims of self-defense. There was evidence that defendant and deceased had domestic trouble, that deceased was quarrelsome and dangerous when drinking, and that he had been drinking at the time of the shooting. Just why the defendant was not prosecuted on a charge of murder or manslaughter we are not advised; presumably on the theory that the wound inflicted was not the proximate cause of death.

The first contention is that the court erred in refusing defendant’s requested instruction presenting her theory of the case. This request in substance is that defendant had a right to go to the place where deceased was for the purpose of inducing him to return home, even though she might know such act on her part might cause Mm to become angry and make an attack upon her; that in such case she would nevertheless have a right in case of an attack to meet force with force in defending herself from danger or apparent danger. The court instructed rather fully on the law of self-defense, which instruction substantially embodies the principle contained in the requested instruction.

Complaint is next made that the assistant county attorney in his argument to the jury went outside the record and made improper comment on the character or reputation of defendant; that, as defendant had not placed the same in issue, it was entirely outside the record. This assignment is directed to the following statement in the argument:

“I do not say the deceased was a man we should be proud to boast of, but water seeks its level, and I do not know his wife was any better; she might have been like her husband.”

The character and reputation of defendant was not in issue. That of deceased was. The comment that deceased was of bad reputation was well within the evidence. Defendant bad testified to several acts of deceased within her knowledge showing him to' be of dangerous disposition, some of these acts occurring prior to their marriage. Counsel in his argument had a right to draw all reasonable and logical deductions from the evidence as viewed from the standpoint of the state. The statement complained of certainly is not inflammatory and could not have had any influence in causing the jury to arrive at the verdict they did. They present no reason for disturbing the judgment.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


source: Caselaw Access Project

author: DAVENPORT, J.

license: Public Domain

text:
    W. R. SHERRILL et al. v. STATE.
    No. 6621.
    Opinion Filed May 11, 1929.
    (277 Pac. 288.)
    R. Place Montgomery, for plaintiffs in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiffs in error, hereinafter called the defendants, were convicted on a charge of pointing a deadly weapon at another, and each sentenced to pay a fine of $50 and to he confined in the county jail for a period of three months. Motion for new trial was filed and overruled, and the record perfected, and case appealed to this court.

The testimony on behalf of the state, in substance, shows that a controversy arose between the defendant Basal Sherrill and the prosecuting witness, J. A. Grieser, over a partition fence between the land the defendant Basal Sherrill had rented from the prosecuting witness, and the lands the prosecuting witness owned and occupied. At the time of the alleged trouble it appears that the prosecuting witness, J. A. Grieser, was taking down and' removing the partition fence, and the defendant, Basal Sherrill objected, contending he had rented the land and the fence being removed was along the line of the land he rented 'and in his rental contract there was nothing said about the fence being removed during his crop season.

The testimony further shows that the defendant Basal Sherrill and his father went to where the prosecuting witness, Grieser,, was taking down and removing the fence, and a controversy arose and words passed between the parties, and that defendant Basal Sherrill had with him a 12-gauge single-barrel shotgun; that, while the controversy was going on and words passed between the parties, Basal Sherrill pointed the gun at the prosecuting witness, Grieser, the other defendant W. R. Sherrill being present with Basal Sherrill. This is, in substance, the testimony on behalf of the state.

The defendant, Basal Sherrill, testified, in substance, that he had been to his father’s place, and, when he came back home, he found Mr. G-rieser tearing down the partition fence; that he went down and asked him to quit; and he said, “By God, it was his fence and he would move it when he pleased.” There had 'been no agreement that the fence should be moved. “I don’t remember what he said; I turned and started to the house and he said, ‘What are you running off for, no use being a coward.’ I had the shotgun; he came on the east side of the fence he was moving; I took the shotgun with me; I thought Mr. Grieser would hit me with the hammer; at the time I pointed the gun at Mr. Grieser he was on the land I had rented; the first thing I heard when I got to where Mr. Grieser was, he said to Rudolph, ‘Go to the house and phone. I have one of the boys in jail and he would put the other two there’.” The defendant Basal Sherrill admitted he had the shotgun over there with him, and that they had talked back and forth, and that he pointed the gun at the prosecuting witness.

The defendant W. R. Sherrill testified that, when he went with Basal Sherrill to where Mr. Grieser was tearing down the fence, Basal said, “Didn’t I tell you I didn’t want this fence moved.” And he said, “Ha, ha, when did you own this place; by God it is going to be moved anyway.” Basal said, “You heard what I said.” And Mr. Grieser said, “What are you going to do, put down your gun and come out like a man.” Mr. Grieser had a claw hammer in his hand, and, when he told Basal to put his gun down, he was on the west side of the fence; when he took hold of this wire like he was going to work, Basal made as though he was going to point the gun at him; he did not point the gun at him, but the old man jumped right over the fence, back to the other side; then the boy walked back to tbe bouse. This is, in substance, the testimony that was introduced in the case.

The defendants assigned several errors alleged to have been committed by the trial court: The verdict of the jury and judgment of the court is contrary to the law; that the verdict is contrary to the evidence; that the court erred in overruling the demurrer to the evidence of the state; the court erred in overruling defendants’ motion for a new trial.

This prosecution is based on section 1999, Comp. Stat. 1921, providing:

“It shall be unlawful for any person to point any pistol or any other deadly weapon, either loaded or not, at any person or persons, either in anger or otherwise.”

The defendants in this case attempt to justify the action of the defendant Basal Sherrill by the fact that he had rented the land from the prosecuting witness, and the prosecuting witness was removing the fence along, the line of the land defendant had rented, and that there was nothing in the rental contract with reference to the removing of the fence before defendant’s contract expired.

This couid, in the case of Dickinson v. State, 3 Okla. Cr. 151, 104 Pac. 923, held that a person did not have the right to use a dangerous or deadly weapon on another for the purpose of preventing a trespass upon land, and, in the body of the opinion, quoted with approval from Clark on Criminal Law, as follows:

“A person may resist a trespass on his property, real or personal, not amounting to a felony, or removal or destruction of property not feloniously attempted, by the use of any reasonable force, short of taking or endangering life; but, if he is unable to prevent it, and there is no felony attempted, he must suffer the trespass and the loss of property, and seek redress at the bands of tbe law, rather than commit homicide.”

It is urged by the defendant that the evidence is insufficient to sustain the judgment. This court, in the case of Teague v. State, 13 Okla. Cr. 270, 163 Pac. 954, held:

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

After a careful reading of the record in this case, we hold that the court did not err in overruling defendant Basal Sherrill’s demurrer to said evidence; that the testimony was sufficient to sustain the judgment against him. We hold further, that the demurrer of the defendant W. R. Sherrill should have been sustained; there being, no competent evidence to sustain the judgment against him.

In McLaughlin v. State, 18 Okla. Cr. 137, 193 Pac. 1010, this court held:

“Where there is absolutely no evidence proving his guilt, it is the duty of the court to instruct the jury to find the defendant not guilty.”

There are other errors assigned by the defendants, but in the view we take of this record it is not necessary to consider them. The judgment of the trial court as to the defendant Basal Sherrill is affirmed; and, as to the defendant, W. R. Sherrill, the judgment is reversed and remanded.

EDWARDS, P. J., and CHAPPELL, J., concur.


author: EDWARDS, P. J.

text:
    In re OPINION OF THE JUDGES. In re CLAUDE (BLACKIE) HAGER.
    No. A-7356.
    Opinion Filed May 11, 1929.
    (277 Pac. 283.)
   To His Excellency, the Governor of the State of Oklahoma — Sir:

In response to your official communication of April 26, 1929, addressed to this court, asking for an opinion as provided in section 2786, Comp. Stat. 1921, in the matter of the conviction of Claude (Blackie) Hager for the crime of murder in the district court of Ottawa county on February 18,1929, and by judgment of said court sentenced to death 'by electrocution on May 10, 1929, within the walls of the state penitentiary at McAlester, we hereby submit the following opinion of the judges:

EDWARDS, P. J.

The record submitted, and to which is attached your request for opinion, discloses that the defendant, Claude (Blackie) Hager, was charged with murder in the district court of Ottawa county. Upon a trial of said charge he was convicted, and sentence of death was rendered February 18, 1929. Under the Constitution and laws of this state, any person convicted of felony may appeal within six months from the time judgment is rendered. Section 2808, Comp. Stat. 1921. This time does not expire until August 18, 1929, but on April 30, 1929, defendant filed in this court his appeal from the judgment and sentence aforesaid. It has been the uniform holding of this court that the provisions of section 2786 of the statute contemplates an advisory opinion, where an appeal has not been taken from the judgment and sentence of death. To render an advisory opinion where an appeal has been perfected, and before the same has been briefed, argued, and submitted, would be to prejudge a case upon an ex parte proceeding.

The appeal having been lodged in this court, such appeal automatically gave the accused a right to suspension of execution of the sentence of death until his appeal has been determined. An order staying execution has been made by this court, and the case will be duly reviewed on the appeal.

DAVENPORT and CHAPPELL, JJ., concur.


author: CHAPPELL, J.

text:
    J. B. DILBECK v. STATE.
    No. A-7274.
    Opinion Filed May 11, 1929.
    (277 Pac. 284.)
    See, also, 41 Okla. Cr. 87, 270 Pac. 858.
    Jess L. Ballard and Richard L. Wheatley, for plaintiff in error.

      Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Craig county of the crime of forgery in the second degree, and his punishment fixed 'by the jury at imprisonment in the state penitentiary for one year and one day. The charging part of the information is: “That the said J. B. Dilbeck in the 'County and State aforesaid, on the 17th day of January, 1928,, did knowingly, willfully, unlawfully, wrongfully, intentionally, falsely, designedly and feloniously sell, pass, exchange and deliver for a valuable consideration, to-wit: Merchandise of the value of $3.65, good and lawful money of the United States of America, and the sum of $8.85 cash, good and lawful money of the United States of America, to the Lenox store, same being located in Vinita, Oklahoma, and owned and operated by the Sanders-Rddg way Company, a corporation, a certain forged and counterfeited bank check, a photographed copy of which is hereto attached, marked ‘Exhibit A’ and made a part of this information, said check being then and there, false¡, forged and counterfeited in this, to-wit: That the signature of the payee, W. Perrier, endorsed .on the back of said check was and is false, forged and counterfeited and not the genuine signature of the said W. Perrier, as the said J. B. Dilbeck then and there well knew and knowing said check to be forged, false and counterfeited, did then and there willfully, unlawfully and felon-iously sell, pass, transfer, exchange and deliver to the Lenox Store as aforesaid, said false, forged and counterfeited bank check as aforesaid, with the willful, wrongful, unlawful, fraudulent and felonious intent to have the same uttered and passed as aforesaid. * * *”

The evidence of the state was that Fairbanks-Morrison Company of Kansas' City, ’Mo., issued its voucher check No. 152 payable to W. Ferrier for the sum of $12.50. The state charges that in some manner the defendant obtained possession of this check, forged the name of W. Ferrier to the same, and passed the check with the indorse-ments as true upon the Lenox Store at Yinita, Okla., and received in exchange therefor merchandise of the value of $3.65 and $8.85 cash; the contention of the state being that the defendant forged the name of W. Ferrier to the check and appropriated the proceeds to his own use and benefit.

The first error complained of by the defendant is that, “The trial court erred in overruling the defendant’s motion to quash the information.” The complaint was filed before D. M. Mars, a justice of the peace in and for Vinita, Craig county. The defendant filed an affidavit for a change of venue, which change was granted and the cause transferred to the county court of Craig county.. The defendant appeared in the county court and objected to a preliminary trial being held before the county judge, because the justice of the peace was without legal authority to transfer the cause to the county court and the county court was without legal authority to conduct the preliminary hearing. The objection was overruled, the county judge held a preliminary hearing, bound the defendant over to the district court for trial, the county attorney filed the information in the district court, and the defendant there objected that he had not been given a preliminary trial as provided by law and that therefore the district court had no jurisdiction of the case.

Section 17, art. 7, Constitution of Oklahoma, provides :

“County courts shall also have and exercise the jurisdiction of examining and committing magistrates in all criminal cases.”

In the case of Cress v. State, 14 Okla. Cr. 521, 173 Pac. 854, this court said:

“The conduct of an examining trial by a county judge does not involve the exercise of the judicial power of the county court as a court of record. He exercises only the powers and jurisdiction that a justice of the peace would exercise when conducting a similar inquiry.”

In the case of Marshall, County Judge, v. Sitton, 68 Okla. 175, 172 Pac. 964, in the body of the opinion it is said:

“The object of a preliminary examination is to inform the defendant of the nature and character of the crime charged against him and to lay a preliminary foundation for the prosecution in a court of record, to inquire concerning the commission of the crime charged and the connection of the accused therewith,, and to determine whether there is probable cause to believe him guilty so that the state may take the necessary steps to perpetuate testimony and determine the amount of bail which will probably secure the attendance of the accused to answer. State v. Pigg, 80 Kan. 481, 103 Pac. 121, 18 Ann. Cas. 521; Harris v. Rolette, 16 N. D. 204, 112 N. W. 971; Bishop’s New Criminal Procedure, § 239. The conduct of such examination is not the exercise of any part of the judicial power of the county court as a court of record, but the county judge in the conduct thereof exercises only the powers and jurisdiction that a justice of the peace would exercise when acting as a magistrate in preliminary examinations. State v. Pigg, supra; United States v. Hughes (D. C.), 70 Fed. 972; State v. Nast, 209 Mo. 708, 108 S. W. 563; Bishop’s New Criminal Procedure, § 237.”

In the case of Garnett v. State, 15 Okla. Cr. 332, in the body of the opinion on pages 336, 337, 176 Pac. 769, 770, this court held;

“Under the constitutional provisions and the statutes quoted, the filing, of a proper affidavit for a change of venue before an examining magistrate deprives him of further power or authority in the cause, and he can only transfer the cause to another justice of the peace or county judge, and such magistrate is vested with no discretion as to whether such change shall be granted, nor is he authorized to determine the truth of the averments of the affidavit for a change of venue.”

In the Garnett Case this court in effect stated that the county judge was acting only as a justice of the peace when it came to an examining trial, and that a change of venue would lie to him from a justice of the peace and from him to any justice. The defendant was entitled to> a preliminary examination before a magistrate having jurisdiction of the offense charged; he had that hearing as required by law. The contention of the defendant that the trial court had no jurisdiction of this case is without substantial merit, and there was no error in overruling the motion to quash and set aside the information.

The defendant next contends:

“The verdict of the jury, and the judgment and sentence rendered and pronounced thereon is not warranted by the evidence, and is contrary to the evidence and contrary to law.”

This court has repeatedly held that the sufficiency and weight of the evidence was for a jury, and that where there was any competent evidence in the record to support the verdict the cause would not be reversed. There was sufficient evidence offered by the state, if believed by the jury, to justify the verdict of guilty.

Finally, defendant urges as error No. 3: “Error on the part of the trial court in failing to properly instruct the jury.” While the defendant saved exceptions to the instructions given by tbe court, be failed to submit in writing any instructions upon tbe propositions complained of. Tbe instructions given 'by tbe court were as favorable to tbe defendant as tbe facts disclosed by tbe evidence would! warrant.

A careful examination of tbe record discloses that tbe defendant bad a fair trial, that tbe evidence is sufficient to support a verdict of guilty, and, no substantial errors of law appearing upon tbe record, tbe cause is affirmed.

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


text:
    CLINT WELCH v. STATE.
    No. A-6623.
    Opinion Filed May 11, 1929.
    (277 Pac. 280.)

      Wm. T. Powell, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Cotton county on a charge of driving an automobile while under the influence of intoxicating liquor and his punishment fixed at a term of eight months in the State Penitentiary.

The contention is first made that the evidence is not sufficient to prove the crime charged, in that it fails to show that defendant was intoxicated to that degree that he did not have possession of all his faculties. The testimony clearly shows that at the time charged defendant was at the town of Temple in a more or less intoxicated condition. It also indicates that, while driving the car as charged, he attempted to run down 'Graham, the city marshal. On cross-examination defendant testified:

“* * * Q. How many drinks had you had, Clint? A. I don’t know about that. I didn’t count them. Three or four drinks.
“Q. You were feeling pretty good? A. Yes, sir.
“Q. About three sheets in the wind? A. I don’t know how high that is.
“Q. Where did you get that whiskey, Clint? A. It was homebrew. * * *”

Defendant was convicted of the offense defined by section 3, chap. 16„ Session Laws 1923, which is:

“It shall be unlawful far any person who' is under the influence of intoxicating liquor, * * * to operate or drive a motor vehicle on any highway within this state, * * * and any person violating the provisions of this section shall be deemed guilty of a felony and shall be punished by imprisonment in the penitentiary not more than one year, or by fine of not more than $2,000, or by both imprisonment and fine.”

As will be seen, this statute does not state the extent to which one must be under the influence of intoxicating liquor in order to constitute the offense, but the evidence of the state, coupled with the admission of defendant that he had three or four drinks and was feeling the effect of such drinking, brings him clearly within the statute.

It is next argued that the cause should be reversed for the reason that the court did not define the term, “under the influence of intoxicating liquor.” Counsel requested the court to define the term, but submitted no instruction. Where a statute uses words or terms having a definite or technical meaning under the law, they should be defined or explained in the instructions, but it is generally said it is not error to fail to give such definition or explanation in the absence of a request. 16 C. J., page .1056, § 2498, note 24. Where a word or term used in a statute and not defined by the statute is in common use, and as such can be understood by a person of ordinary intelligence, it is not necessary for the court to define or explain it. The term “under the influence of intoxicating liquor” is probably as well understood by the jury as any definition of it would have been. But, in any event, if counsel for defendant desired that the court define the term, it was their duty to prepare and present to the court a request for an instruction. If they failed to do this, and the instructions as a whole fairly state the law applicable, the error, if any, in failing to more particularly define will be deemed waived. Section 2687, subd. 5, Comp. Stat. 1921; Fitzsimmons v. State, 14 Okla. Cr. 80, 166 Pac. 453; Merriott v. State, 18 Okla. Cr. 247, 194 Pac. 263.

Lastly it is complained that the court erred in receiving the verdict of the jury with the finding that they could not agree on the punishment without requiring them to deliberate longer in order that the jury might fix the punishment. A defendant has a right to' have the jury fix the punishment where they can agree. Sections 2750, 2751, Comp. Stat. 1921. It appears here that the jury deliberated but a short time until they returned with their verdict. It does not appear, however, that at the time the verdict was received defendant made any objection or requested the court to require the jury to longer deliberate with a view to assessing the punishment. When this is not done, the presumption is that defendant is satisfied with the form of the verdict. The first objection made is in the motion for a new trial. See Bayless v. State, 9 Okla. Cr. 27, 130 Pac. 520. Under this assignment it is further earnestly urged that the punishment of eight months in the penitentiary for driving while under the influence of liquor is excessive, where there has been no collision nor any one injured by such unlawful driving. This court recently affirmed a sentence of one year under such circumstances. In the case of Gault v. State, 42 Okla. Cr. 89, 274 Pac. 687, it was said:

“* * * It is true no one was injured nor any property damaged in the commission of the offense charged, but it was almost miraculous that no one was injured by the manner in which defendant drove along the streets of the town of Leedy. ¡Some protection must be given to those lawfully using the public highways against the driver who becomes intoxicated and recklessly speeds about endangering others. * * *”

Upon a consideration of the entire case, no substantial error is made to appear, and there is no reason why this court should disturb the judgment.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    E. H. MENDALL v. STATE.
    No. A-6983.
    Opinion Filed May 11, 1929.
    (277 Pac. 263.)
    A. J. Stevens and L. Z. Lasley, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Woods county on a charge of violating the prohibitory liquor law, and was sentenced to serve a term of 30 days in the county jail and to pay a fine of |50.

The judgment was rendered in January, 1928, and the appeal was lodged in this court in April, 1928. In August following there was filed in this court a motion to dismiss, setting out that subsequent to the conviction in this case defendant was again convicted for a violation of the prohibitory liquor law, and while serving said sentence he escaped from the county jail and is a fugitive from justice. This motion is supported by affidavit of the sheriff of Woods county. No response thereto has been filed. In conformity to the uniform holding of this court, where a person is convicted of á crime and appeals, and after-wards becomes a fugitive, the appeal will be dismissed.

For the reasons assigned, the appeal is dismissed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    RED NICHOLS v. STATE.
    No. A-6481.
    Opinion Filed May 11, 1929.

      (277 Pac. 263.)
    Bond & Bond, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, Red Nichols, hereinafter called defendant, was convicted the court of Stephens county of the crime of larceny of domestic animals and sentenced to serve two years in the state penitentiary.

When the state rested, the defendant demurred to the evidence offered by the state for the reason that it was wholly insufficient to sustain a verdict of guilty, which demurrer was by the court overruled. The defendant then offered his evidence, and the jury found the defendant guilty as charged in the information.

The defendant moved for a new trial and assigned the insufficiency of the evidence together with numerous: other reasons for the granting of a new trial, which motion was overruled and exceptions saved. The defendant in his brief argues that the evidence was insufficient to establish the crime of larceny for the reason that the as-portation “was complete but the undisputed evidence showed that the defendant was not present when this as-portation took place,” arguing that whatever crime the defendant might have committed he could not be convicted of larceny under the evidence in the case at bar, for the reason that, even if the evidence showed that he sold the animal to Phillips, yet, he not being personally present when Phillips took possession of the purchased animal, he was not therefore guilty of larceny.

Section 2101, C. O. S. 1921, defines larceny as:

“The taking of personal property accomplished by fraud or stealth, and with intent to deprive another thereof.”

The defendant was evidently prosecuted under section 2116, C. O. S. 1921, which provides:

“Any person in this state who shall steal any horse, shall be guilty of a felony and upon conviction shall be punished by confinement in the state penitentiary for a term of not less than five years nor more than ten years; and any person in this state who shall steal any cow, or hog shall he guilty of a felony and upon conviction shall 'be punished by confinement in the state penitentiary for a term of not less than two (2) years, nor more than ten years. The word ‘horse’ as used in this act, shall include all animals of the equine species, and the word cow shall include all animals of bovine species.”

The defendant earnestly contends in his brief that there is no evidence showing that he was ever actually in possession of the personal property because of the fact of stock running at large on the range. The defendant overlooks the testimony of Hay Bird who testified that he saw the stolen cattle up at the house of the defendant in his inclosure. Defendant also overlooked the testimony of L. C. Whitehill who testified, in substance, that he lived near the Martin pasture. That on Sunday morning, before the discovery that the animals in question had been stolen, he saw Red Nichols drive into the Martin pasture in a truck with side boards on it and come out, and that on the next morning he saw the cow in question in the pasture, and that it was the only animal in the pasture at that time.

The defendant himself testifying in the case admitted that he left his father’s house at 4 a. m. on that same Sunday morning and went home in a truck, but denies that he was near this pasture, or that he took the animal in controversy. The authorities cited by the defendant would be sufficient to justify a reversal o'f this case, if the only evidence tending to connect the defendant with the larceny of this case was the evidence of the purchaser, Phillips. But since the undisputed evidence in the case is that the defendant was, just prior to the sale to Phillips, in actual possession of the stolen property, and there is other evidence in the record tending to show that the defendant was in possession of the animal just a few days before bis arrest and after tbe sale to Phillips, there was sufficient evidence before the jury to justify the verdict of guilty.

This court has heretofore invariably held that the credibility of the witnesses and the weight and value to be given their evidence is for the determination of the jury, and, where the evidence and the reasonable and logical inferences and deductions to be drawn from it are sufficient to convince the jury beyond a reasonable doubt of the guilt of the defendant, this court will not disturb the verdict for insufficiency of the evidence.

The evidence in this case being sufficient to support the verdict of the jury, and no substantial errors of law appearing upon the record, the cause is affirmed.

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


author: CHAPPELL, J. CHAPPELL, J.

text:
    LULA SHAW et al. v. STATE.
    No. A-6742.
    Opinion Filed May 11, 1929.
    On Rehearing, June 8, 1929.
    (277 Pac. 278.)
    Geo. W. Buckner, for plaintiffs in error.
    Dan Mitchell, Co. Atty., and A. L. Zinser, Asst. Co. Atty., for the State.
   CHAPPELL, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Garfield county on a charge of transporting intoxicating liquor. The jury fixed the punishment of the defendant, Lula Shaw, at 30 days in jail and a fine of $250, and fixed the punishment of the defendant, Ward Shaw, at imprisonment in the county jail for 90 days and a fine of $250.

The case was tried in April, 1927, and the appeal was lodged in this court in August, 1927. No briefs in support of the appeal have been filed, nor was there any appearance for oral argument at the time the case was submitted.

An examination of the record discloses no jurisdictional or fundamental error. The evidence was sufficient to support the verdict of the jury, and the case is therefore affirmed.

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

On Rehearing.

CHAPPELL, J.

On rehearing the judgment is modified as to the defendant Lula Shaw by reducing the fine from $250 to $100, and, as modified, the cause is affirmed. Mandate ordered issued.

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


text:
    WALTER KAUL v. STATE.
    No. A-6533.
    Opinion Filed May 11, 1929.
    (277 Pac. 278.)

      Norman H. Wright, for plaintiff in error.
    Edwin Dabney, Atty. Gen., Smith C. Matson,, Asst. Atty. Gen., and W. P. Morrison, Co. Atty., for the 'State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Canadian county of the crime of assault with intent to commit rape, and was sentenced to serve a term of one year in the state penitentiary.

The defendant was charged with assault with intent to commit rape upon one Opal Harding. Upon the trial of the case the state called Opal Harding, then the wife of defendant, and offered her as a witness against the defendant. The defendant objected to her testifying because she was the wife of the defendant and incompetent to testify against him. The witness also requested that she be not required to testify. The court sustained the objection. The state then offered in evidence the transcript of the testimony of Opal Harding, taken at tbe preliminary trial of the defendant, which evidence was admitted 'by the court over the objection of the defendant, and the admission of this evidence is now assigned as a ground for reversal of this cause.

The first ground of error relied on by the defendant is that the information fails to charge a public offense against the defendant. In the case of Maples v. State, 30 Okla. Cr. 151, 235 Pac. 264, this court held an information almost identical with the information in this case sufficient. In the case at bar the information is more explicit than in the Maples Case. In the case at bar the defendant is charged with an assault with intent to commit rape, and was sufficient to put the defendant on notice of the crime charged.

The defendant for his second ground of error complains of the admission of incompetent, irrelevant, and immaterial testimony over the objections and exceptions of the defendant. This objection raises the question of the admissibility of the transcript of the testimony of Opal Harding, taken at the preliminary hearing of the charge and prior to the time of her marriage to the defendant. The real question under this ground is: Can the defendant, by his marriage of the witness, render testimony, otherwise competent, incompetent? This question has never been passed on by this court under these circumstances.

Section 589, C. O. S. 1921, reads as follows:

“The following persons shall be incompetent to testify. * * * Third. Husband and wife, for or against each other, except concerning transactions in which one acted as the agent of the other, or when they are joint parties and have a joint interest in the action; but in no case shall either be permitted to testify concerning any communication made 'by one to the other during the marriage, whethjer called while that relation subsisted, or afterwards.”

Section 2699, C. O. S. 1921, provides:

“Except as otherwise provided in this and the following chapter, the rules of evidence in civil cases are applicable also in criminal cases: Provided, however, that neither husband nor wife shall in any case be a witness against the other except in a criminal prosecution for a crime committed one against the other, but they may in all criminal cases be witnesses for each other, and shall be subject to cross-examination as other witnesses, and shall in no event on a criminal trial be permitted to disclose communications made by one to the other except on a trial of an offense committed by one against the other.”

The Supreme Court of Oklahoma in the case of Sands v. David Bradley & Co., 36 Okla. 649, 129 Pac. 732, 45 L. R. A. (N. S.) 396, in paragraph 2 of the syllabus says;

“The competency of the wife as a witness depends upon the relationship at the time of the trial, when she is offered as a witness, and not as to whether she was the wife at the time the cause of action accrued, or the occurrence transpired, about which she is expected to testify. * * * Defendant does not claim that she was a competent witness by reason of her being his agent, or jointly interested in the action, but upon the grounds that at the time the transaction took place, about which she was to testify, she was not the wife, but the stenographer, of defendant, and that the statute prohibiting the wife from testifying for or against the husband clearly intended only to prevent the wife or husband from giving evidence for or against each other concerning a transaction or communication during coverture. We cannot find such an exception to the statute. * * * The statute will not bear any other construction; and as defendant does not claim she was acting as his agent, or that she had a joint interest in the action, or that she was in any other manner qualified as a witness, under the statute, it must be held) that there was no error in the ruling of the trial court on the subject.”

It is true that this is a civil case, but the rules of evidence under our Code being the same in criminal and civil cases, as far as applicable, it is at least persuasive in criminal cases upon the proposition that the competency depends on the relationship at the time the testimony is offered, and not upon the question as to whether she was the wife at the time of the occurrence complained of.

The state cites the case of Exleton v. State, 30 Okla. Cr. 224, 235 Pac. 627, as an authority to support the rule of the court admitting the transcript of the evidence in this case, but the Exleton Case is not in point, for the reason that, although the witness, after testifying at the preliminary and before the trial, refused to testify on the ground that his evidence might tend to incriminate him, and not on the ground that he was the husband of the defendant. He had the right to refuse to testify, and the state must give him immunity. In that case the court held the evidence admissible, but in the case at bar the defendant objected to Opal Harding testifying on the ground that she was his wife, and therefore incompetent to testify against him, except for crimes committed by the defendant against his wife since their marriage.

In the case of State v. Winnett, 48 Wash. 93, 92 Pac. 904, in paragraph 3 of the syllabus, the court said:

“Where, on a prosecution for statutory rape, the pregnancy of the female was a fact sought to be proved by the state, and between the alleged crime and the trial defendant had married the female, and a physician had just testified to her pregnancy of about six months’ duration, ascertained by Mm on an examination, it was error to cause her, over objection of defendant, to be brought into court ostensibly to be identified by the physician, as it amounted to the giving of testimony by the wife for the state.”

In the body of the opinion that court said:

“During the testimony of Dr. Van Patten the prosecution asked that appellant’s wife be brought into the courtroom, ostensibly to be identified by the witness as the same person whom he had examined that day. This was strenuously objected to by the appellant, but the objection was overruled, and the wife was called. It is contended by the appellant that, notwithstanding the fact that the law will not permit the wife to< testify against him without his consent, by this pretense she was actually made an exhibit for the state. We think the appellant has just -ground for complaint in this respect. The -wife was in reality a witness against him by being brought in sight of the jury where her condition as to pregnancy, which was a fact which the state sought to prove, could be observed and noted by the jury. This might have been evidence of the most convincing and telling character, and being produced before the jury, just after the testimony of Dr. Van Patten in relation to her pregnancy, and the possible length of time which she had been in that condition — presumably six months — it would not be slanderous to impute to the jurors a careful scrutiny of the witness with a view of determining for themselves the probable correctness of the doctor’s diagnosis. The result was that, while the wife could not testify as to her condition, by this subterfuge she actually did testify in a manner more convincing than mere words would have been.”

The court in that case held that it was reversible error to force the wife of the defendant to personally appear in the courtroom for the identification of the doctor and to be seen by the jury. Certainly, if a woman who had actually been raped and was pregnant, who had married the defendant before the trial, could not even be brought into the courtroom without prejudice to the substantial rights of the defendant, then in the case at bar it would be improper for the testimony of the wife, taken prior to her marriage, to be read to the jury, when she herself was incompetent as a witness to testify against the defendant, because of her marriage to him.

If the competency of the wife as a witness in a civil case depends upon the relationship at the time of the trial when she is offered as a witness, and not as to whether she was the wife at the time the occurrence transpired upon which she is called upon to testify, then with greater force it should be held in a criminal prosecution that she was incompetent to testify as to crimes committed against her by the defendant before marriage. In the case at bar the wife was not a necessary witness, her evidence was clearly incompetent, and the admission of the same deprived the defendant of a substantial statutory right.

The defendant alleges numerous other errors, but the view we take of the case makes it unnecessary to pass on any of them. For the reasons stated, the cause is reversed and remanded to the district court of Canadian county for further proceedings according to law.

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


author: PER CURIAM.

text:
    BENNIE WIEHN v. STATE.
    No. A-6679.
    Opinion Filed May 11, 1929.
    (277 Pac. 263.)
    Meacham & Meacham, for plaintiff in error.

      Edward Dabney, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Custer county on a charge of transporting intoxicating liquor, and he was sentenced to pay a fine of $75 and to serve 30 days in the county jail.

The judgment was entered in March, 1927, and the appeal was lodged in this court in June, 1927. No briefs in support of the appeal have been filed.

The record discloses that at the time charged defendant overturned an automobile on the highway, and, this circumstance being reported to the sheriff’s office, certain officers went to the place where the car had at this time been righted. They discovered two jars of whisky under the car and another jar containing some whisky in the seat of the car. Defendant admitted the officers found some whisky there, but denied that he had possession of it, or knew any of it was in his car. The case was fairly tried and no jurisdictional or fundamental error is apparent.

The case is affirmed.


text:
    SAM MITCHELL v. STATE.
    No. A-6386.
    Opinion Filed May 11, 1929.
    (277 Pac. 260.)

      Sam S. Grill, for plaintiff in error.
    J. K. Wright, Co. Atty., and L. W. Harrod, Asst. Co. Atty., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Oklahoma county on a charge of having possession of whisky with intent to barter;, sell, give away, or otherwise furnish the same, and was sentenced to pay a fine of $350 and be confined in the county jail for six months. Motion for new trial was filed, overruled, and exceptions saved, and the cause appealed to this court.

The defendant assigns numerous grounds of error, but groups them under two propositions; first the search warrant was void, and the evidence secured thereby inadmissible. The affidavit for the search warrant is sworn to positively, and sets out facts sufficient to justify the issuance of the warrant.

The defendant argues first that the description of the premises to be searched is insufficient. The property is described in the affidavit for the search warrant as follows:

“A one story frame house, with shed kitchen on west side, said house being painted a slate color trimmed in green, said house being the first house south of the Rock Island tracks on the west side of Bath street, and outbuildings and premises all being in Oklahoma County and; state.”

It appears from, the evidence in this case that this was the only house of any description south of the Rock Island tracks on the west side of what would have been Bath street, had such street crossed the Rock Island tracks. It further appears that the officers were able to locate these premises from the description contained in the search warrant, and that is all that is required. .

The defendant next argues that, since the premises were a private residence, the allegation in the affidavit, “that it is a place where numerous persons congregate for the purpose of drinking intoxicating liquor,” is insufficient to describe the premises as a place of public resort, as required by section 7013, C. O. S. 1921.

In the case of Walkenhorst v. State, 38 Okla. Cr. 180, 259 Pac. 663, this court said:

“A search warrant may issue to search a private residence only when it is made" to appear in the affidavit that it or some part of it is used as a store, shop, hotel, boarding house, or place for storage, or unless it is a place of public resort, but it is not required that such affidavit shall use the exact words of the statute, but words of similar import may be used.”

While the language used it not as full as it might be, the affidavit is sufficient.

Under his second proposition, the defendant urges “that the court erred in refusing to instruct the jury that the having of more than a quart of liquor did not of itself overcome the presumption of innocence.”

The trial court gave the following instruction:

“You are further instructed that under the laws of this state the keeping in excess of one quart of whisky or in any manner permit any other person to keep in or about his place of business or residence or place of amusement or club room such intoxicating liquor is prima facie evidence of an intent to barter, sell or give away the same contrary to law; and in this connection you are instructed that if you find and believe from the evidence in this case, beyond a reasonable doubt that the defendant, Sam Mitchell, had in his possession and under his control, or in any manner permitted any other person to keep such intoxicating liquor, to wit: 27 gallons of whisky, in or about his place of business or residence, then you will consider that fact, in connection with all the other facts and circumstances in this case in arriving at your verdict.”

This instruction correctly stated the law as applicable to the facts in this case, and the requested instructions of the defendant were properly refused by this court.

There being ample evidence in the case to support the verdict of the jury, and the errors of law complained of being without merit, the cause is affirmed.

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


text:
    PHIL AUSMUS v. STATE.
    No. A-6604.
    Opinion Filed May 11, 1929.
    (277 Pac. 259.)

      M. A. Cox, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Lincoln county of the crime of forgery in the second degree, and his punishment fixed by the jury at imprisonment in the state penitentiary for one year and one day.

The defendant, according to the evidence of the state, on the 27th day of April, 1926, sold and delivered to the Davenport 'State Bank a certain forged check for the sum of $185, payable to the order of E. B. Allen, and purporting to be signed by B. W. Collier. The Davenport State Bank issued a deposit credit to E. B. Allen for $185. This check was a forgery, E. B. Allen apparently a fictitious person, the contention of the state being that the defendant intended to appropriate to his own use the proceeds of this check through some manipulation of the checking account and was only prevented from doing so by the discovery of the forgery before the money could be procured from the Davenport State Bank.

The first error complained of by the defendant is “error of the court in overruling defendant’s demurrer to’ the information.” The defendant argues in his brief that the demurrer should have been sustained because the information did not set forth the consideration running to the defendant.

In the case of Wilborn v. State, 26 Okla. Cr. 439, 224 Pac. 215, this court said:

“Numerous assignments of error are urged in defendant’s brief. Among other things, it is contended that the proof did not support the allegation of the information that the defendant offered this note for sale, or that it was sold to the Woodward bank in violation of this or any other statute. This claim seems to be based upon the fact that the defendant received no money; that the note was executed and delivered to satisfy the bank for a past and closed financial transaction; and that in that sense it was not a sale or offer for sale and not within the provisions of the statute. We acknowledge that in a technical sense this might be true, but this court does not favor reversals upon mere technicalities. The language of the statute, ‘Any person who sells, exchanges or delivers for any consideration any forged or counterfeited promissory note/ etc., indicates that it was the intention of the lawmakers that it apply to transactions of this nature. The information might have been drawn more specifically in this regard, but we think the information was sufficiently explicit to apprise the defendant of the nature of the charges he would be called upon to meet.”

Further on in the body of the opinion, this court said:

“The proof in a prosecution for false pretense must show the receipt of something of value, directly attributable. to the false pretense. Not so under this forgery statute, under the provisions of which any fraudulent advantage accruing to the accused or any injury suffered by the person imposed upon is sufficient.”

It is not necessary under this, statute that any fraudulent advantage accrue to the defendant, but is sufficient to complete the offense if an injury be suffered by the person imposed upon. While the information is unskillfully drawn, yet it contains sufficient to apprise the defendant of the particular crime charged, and the demurrer thereto was properly overruled.

The defendant next urges that the verdict is not sustained by sufficient evidence. Under our view of the law of this case the evidence was amply sufficient to support the verdict.

The defendant complains that the court erred in giving certain instructions. An examination of the instructions of the court discloses that they correctly state the law as applicable to the facts in this case.

Finally, the defendant complains that the county attorney made prejudicial statements on facts outside the record in his closing argument. The defendant failed to assign the making of the prejudicial remarks as a ground for a new trial, and assigns the making of such remarks as reversible error for the first time in his petition in error in this court. This court has repeatedly held that matters not raised in the motion for new trial and not passed! on by the trial judge will not be considered by this court. Cave v. U. S., 2 Okla. Cr. 258, 100 Pac. 1118; Ledgerwood v. State, 6 Okla. Cr. 105, 116 Pac. 202.

The evidence being sufficient to support the verdict and no substantial errors of law appearing upon the face of the record, the cause is affirmed.

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


text:
    JIM SANDERS v. STATE.
    No. A-5824.
    Opinion Filed May 11, 1929.
    (277 Pac. 605.)

      Phillips & Phillips,, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of grand larceny, and his punishment fixed at one year in the penitentiary. Motion for new trial was filed, considered, and overruled. The defendant excepted, and the case appealed to this court.

The testimony introduced on behalf of the state in substance is that on the 1st day of November, 1924, there was taken from the possession of J. D. Nickles, Tom Boyd-ston, and Ciscero Sewell three bales of cotton of the value of $300, the said cotton being in the ginyard of a gin near Matoy, Oklahoma; that on the following day Bill Brown sold three bales of cotton to' a cotton merchant, O. C. Thornton, at Caney,, Oklahoma; Brown was paid $300 for the cotton; that, some time after the sale of the cotton by Brown to Mr. Thornton, the defendant in this case, Jim Sanders, came to Thornton and asked him if Bill Brown brought any cotton to town, and, if so, how much, and how much he paid for it. The testimony further shows that, after the cotton was missed at the gin one evening about dark, Bill Brown and a number of other parties were at the gin, and Jim Sanders rode up; that it was understood Bill Brown 'might be connected with the taking of the cotton and some one suggested to the defendant that he was suspicioned.

The testimony further shows Bill Brown ran off and after awhile the defendant got on his horse and went away in a gallop, and whooped a time or two as he rode away. The testimony of the state further shows that, on the evening of the night before the cotton was taken, defendant and Bill Brown were on the road a short distance from Matoy, where Bill Brown had built a fire, and they spent some time there together, a number of parties going to the camp and taking part in a card game with Brown and Sanders. As far as the record discloses, the last time defendant Sanders and Bill Brown were together was at the camp on the road near Matoy, the night the cotton was missed from the gin-yard. Nobody saw them together after that time, and Brown, it seems from the record, had entered a plea of guilty and received a suspended sentence. He was not called by the state to testify against the defendant.

The testimony of the state further shows that the defendant, Sanders, shortly after the cotton was taken, left his father’s place, went to Texas, and finally came back to Oklahoma, where he Was apprehended; that, when he was apprehended, he had a sum of money upon him which was more than half of the money the cotton sold for; but there is no testimony in the record on behalf of the state showing that the defendant in this case received any of the money from tbe sale of tbe cotton, or that be had anything to do with tbe taking of tbe cotton. Tbe testimony shows further that the defendant bad picked cotton for Bill Brown a few days before tbe cotton was taken from tbe ginyard and that Brown still owed tbe defendant for cotixm picking. In taking tbe testimony the state went into tbe question of Brown running off from the gin, and defendant objected for tbe reason that tbe witness testified he did not see defendant there at tbe time, which objection was overruled, and defendant duly excepted. Tbe witness Thornton was asked if be bought any cotton from Brown on November 1, 1924, to which question tbe defendant objected, tbe court overruled the objection, and defendant duly excepted. The state then went into tbe question of Brown running off, to which tbe defendant objected, on tbe ground it was incompetent and immaterial as to what Brown was doing, in tbe absence of tbe defendant. Tbe objection was overruled, and defendant duly excepted. The witness was then asked the following questions :

“Q. When did you next see either of them? A. I never seen Bill Brown until 'Sunday night some time in tbe night; he came to my house.
“Q. Did he say anything when he came? Did he stay all night there? Where did he go the next day? A. He went over on a branch that runs down near the field.
“Q. Did he request you to do anything for him?
“Mr. Phillips: I object.
“It will be overruled.
“Mr. Phillips: Exceptions.
“Q. what was it?
“Victor Phillips: I object to anything about Bill Brown, it would not be proof against Sanders.
“By the Court: I reckon that is going about the limit.
“Q. After talking to Mm did you go anywhere? A. Yes, sir.
“Q. Where did you go? A. I went to his place.
“Q. What did you do at his place?
“Mr. Phillips: Incompetent, irrelevant, and immaterial.
“Mr. Turnbull: I am not asking what he said.
“Mr. Phillips: He was asking what Bill Brown done.
“Mr. Phillips: I object to what he did.”

After considerable argument back and forth, the defendant was then asked:

“Q. What did you do when you went over to Bill Brown’s house?”

Which question was objected to, the objections overruled, and exceptions saved.

“Q. Go ahead and tell what, you did when you went over there. A. We got the $175.00 in money that he had buried.
“Q. Where did you get it? A. He got it out of the ground.
“Q. What did you finally do with the money? A. Turned it over to the deputy sheriff.”

The state did not call Bill Brown as a witness, nor did the defendant. The defendant in his own behalf testified and admitted that he was with Brown on the road where he was camping the evening before the cotton was alleged to have been missed that night; that they were there some time and a number of parties came along and stopped and played cards with them by the fire. The defendant testified that Bill Brown owed him for some money borrowed, and for some work, and that Brown told him he was going to sell some cotton the next day and that he wanted to collect what Brown owed him. He explained why he was in the neighborhood at that time, and his father and mother also testified as to why the defendant had been in the neighborhood of Matoy. The defendant also explained what money he had, and. .stated what bank the money was in when he left, where he went in Texas, and from there back into Oklahoma, where he was apprehended. He denied any knowledge of the taking of the cotton by Bill Brown, and. he denied he had anything to do with it whatever. He accounted for the money that he had by the fact that a certain sum had been in the bank and that he had sold some property before he left for Texas, for which he received' the remainder of the money in addition to what he had worked for while around there, and before he was arrested. This is in substance defendant’s testimony.

The defendant has assigned eight errors alleged to have been committed by the court in the trial of the case. First, he alleges that the court erred in overruling his motion for a new trial; second, the court erred in admitting evidence on the part of the state over the objection of the defendant, which evidence was incompetent, irrelevant, and highly prejudicial. These two assignments cover all the questions raised by the defendant in his case. It is urged by the defendant that the testimony in this case is wholly insufficient to sustain the verdict of the jury.

The question to be determined in this case is, Does the circumstantial evidence in this case justify and sustain the conviction? The only evidence produced by the state which in any Avay tends to connect the defendant with the talcing of the cotton is that he was seen with Bill Brown early Friday night, the night the cotton was stolen, and, that he was seen in Caney the next day, the day Bill Brown sold the cotton, although not seen with Brown. The testimony of the defendant himself fully explains why he was with Brown Friday night and why he was in Caney inquiring about Brown Saturday. These are the only two circumstances that in any way tend to show that Sanders might have known that the cotton was taken or might have been in any way connected with the taking of the cotton. This amounts to a mere suspicion, but are they of such probative force as to justify a conviction and sentence of the defendant to the penitentiary, in the light of his testimony and actions showing his whereabouts during the night the cotton was taken?

This court has repeatedly held that:

“Where a conviction is sought upon circumstantial evidence aloné, the circumstances proved must be consistent with each other, and inconsistent with any rational hypothesis other than defendant’s guilt.”

Tomlinson v. State, 27 Okla. Cr. 429, 228 Pac. 608; Wertzberger v. State, 25 Okla. Cr. 1, 218 Pac. 721; Hamilton et al. v. State, 25 Okla. Cr. 238, 219 Pac. 951.

In Hamilton et al. v. State, supra, in the second paragraph of the syllabus, the court said:

“In a prosecution for petit larceny,, circumstantial evidence, which, at most, if unexplained, would only raise a suspicion of guilt, held insufficient to support conviction.”

In this case the circumstances are fully explained by the defendant. He accounts for his whereabouts at all hours and at all times. His being with Bill Brown in the evening of the night the cotton is alleged to have been stolen raises a suspicion that he might have been connected with the taking of the cotton, yet we do not think it is sufficient to sustain a conviction. The defendant up to the time of this alleged larceny shows to have been a hard-working boy, and should not be branded with the stigma of having committed a crime, the circumstances! of which at most raise only a suspicion.

It is further urged by the defendant that the court erred in permitting the testimony of the acts of Brown, after he was taken into custody, and the statements of Brown in the absence of the defendant. This question has also been passed on by this court many times.

In Bohannan v. State, 25 Okla. Cr. 103, 215 Pac. 1078, the court said:

“Declarations of a defendant, made after the offense had been committed, in the absence of a codefendant, are admissible against himself, but inadmissible against the other defendant.”

The testimony objected to by the defendant in this case and the statement and actions of Bill Brown were hearsay, and after the offense, if any, had been committed, and even if a conspiracy existed, it was not admissible. Patton v. State, 29 Okla. Cr. 66, 232 Pac. 454.

For the errors indicated, the judgment is reversed and remanded.

EDWARDS, P. J., and CHAPPELL, J., concur.


text:
    L. L. STINE v. STATE.
    No. A-6308.
    Opinion Filed May 11, 1929.
    (277 Pac. 598.)

      E. W. 'Snoddy, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was indicted in the district court of Alfalfa county, Oklahoma; the charging part of the indictment 'being as follows: “That one J. C. McClure and one Ben Rackley and one L. L. 'Stine in the county of Alfalfa, State of Oklahoma, on or about the 8th day of September, in the year of our Lord One Thousand Nine Hundred and twenty-four and anterior to the presentment hereof, did commit the crime of receiving a deposit in an insolvent bank, in the manner and form as follows, to-wit: That is to say that said defendant, J. C. McClure, being then and there the President, director and active managing officer of the bank of Ingersoll, and the defendant Ben Rackley, being then and there the 'Cashier, director and active managing officer of the Bank of Ingersoll, and the said L. L. Stine, being then and there a member and managing party of said Bank of Ingersoll, and the Bank of Ingersoll being then and there a banking corporation, organized and existing under 'and by virtue of the laws of the State of Oklahoma, and engaged in transacting a general banking business at Ingersoll, Alfalfa County, Oklahoma, did then and there unlawfully, willfully and feloniously receive and accept a deposit in said bank and were accessory to, and did permit and connive at the receiving and accepting on deposit in said bank, the sum of $3000 in money bank bills, bank notes, United 'States Treasury Notes, gold certificates, silver certificates, currency, checks, drafts of the value of $3,000 the personal property of one Sophia Smith when said bank was then and there insolvent; and the said defendants, and each of them then and there knew said bank was insolvent, contrary to the form of the Statute in such case made and provided, and against the peace and dignity of the State of Oklahoma.”

A severance was had and the parties tried separately. The defendant, L. L. Stine,' was convicted and sentenced to pay a fine of $1,000. Motion for new trial was filed and overruled, and the case appealed to this court.

The record in this case is voluminous, containing more than 1,400 pages, most of which are exhibits and statements of the condition of the Bank of Ingersoll, and to the actions of the other defendants in the management and conducting the bank.

When the case was called for. trial the defendant demurred to the indictment on the grounds: First, that said indictment does not substantially conform to the requirements of chapter 7, art. 8, of the Compiled Statutes of Oklahoma 1921; second, that more than one offense is charged in the indictment; third, that the facts stated therein do not constitute a public offense. The demurrer was overruled, and defendant saved an exception. From an examination of the indictment we hold that it properly charges an offense, and the demurrer of the defendant was properly overruled.

The evidence on behalf of the state shows that J. C. McClure was president of the Bank of Ingersoll; that Ben Backley was cashier; the Bank of Ingersoll was organized in 1901 by J. A. Stine, G. E. Nichols, and L. L. Stine; at the time the bank was organized J. A. Stine was president of the First National Bank of Alva, and this defendant was cashier of the First National Bank of Woodward, Oklahoma, and. occupied that position up until 1917, and at the death of his father the defendant became president of the First National Bank of Woodward. Ingersoll is a small town, and the record shows that from the time of the organization of the bank it was never actively managed by the defendant or his father; at the death of his father the stock owned by his father was divided between the defendant and his sister and her husband. The record further shows that the defendant was never actively engaged in the management of the Bank of Ingersoll; that he devoted all his time to the First National Bank of Woodward; took no part in the management of the affairs of the Bank of Ingersoll; that for some time he was carried as vice president of the bank. Defendant filed his resignation as vice president of the Bank of Ingersoll, and the same was accepted.

The record further shows that at the annual meeting in January, 1923 and 1924, that J. 'O. McClure was elected president; L. P. McClure, vice president; and Ben Backley, cashier. It further appears that, after the resignation of L. L. Stine, J. C. McClure, in making his reports to the bank commissioners, would write the name of L. L. Stine as vice president on the bottom of the reports with the typewriter.

. The record further shows that on or about the 18th day of July, 1924, the defendant in this case sold all the stock he owned in the Bank of Ingersoll to J. C. McClure, after which sale he had no occasion to go to Ingersoll to visit the bank or to examine its books; that L. L. Stine was not acquainted with the customers of the Bank of Ingersoll; and that the only information he had with reference to the bank was what he had received from its president, J. C. McClure.

The record further shows that about the 7th of September, 1924, the bank examiner for the State of Oklahoma, who had been examining the Bank of Ingersoll on the 3rd, 4th and 5th of 'September, called the defendant and advised him that he must come to¡ Ingersoll and have transferred back to the defendant the stock he had sold to Mr. McClure; that bank examiner insisted that defendant had no authority to sell the stock. The record discloses that defendant went to Ingersoll and met the bank examiner;, and was advised of the financial condition of the bank by the bank examiner, who insisted that defendant must have transferred back to him the stock he sold McClure in July; that the bank examiner insisted that, because he did not approve the sale of the stock of defendant to J. C. McClure, the sale was not valid.

The testimony further shows that, while the defendant was at the bank going over the matter with the bank examiner and McClure, a customer came into the bank and wanted to withdraw the deposit she had in the bank; that Mr. McClure introduced her to the defendant and told her that defendant was one of the richest men in the state; McClure told defendant that Mrs. Smith wanted' to take her money out; that defendant replied, “I don’t know as to that but the bank is all right.” Mrs. Smith was a customer of the bank and had carried a deposit with the bank for some time; that McClure stated to defendant that Mrs. ¡Smith wanted to take her money out, that she was 'afraid of the bank; Mrs. Smith testified that the money had been left in the bank for her by an agent of a party to whoml she 'had sold some real estate; she states that $2,000 of the money had been in the hands of the bank for some time, and the $1,000 was left the day she talked about taking her money out; she had in the bank in addition to the $3,000, $1,300 on deposit. The record shows that the conversation had with McClure, in the presence of the defendant and depositor, Mrs. Smith, was had after the money had been received by the bank through its president, McClure, and that the conversation was with reference to her withdrawing the money from the bank and not with reference to depositing it in the bank.

The testimony of W. N. Craig, who was handling the trade on the land for Mrs. Smith,, shows that the $2,000 left on deposit was left in escrow on August 22, and that the check for the $1,000 was left with Mr. McClure with instructions to place it to- Mrs. Smith’s credit the same day, but prior to the alleged conversation with Mrs. Smith.

The record further discloses that the First National Bank of Woodward was a correspondent of the Bank of Ingersoll, and that, after the sale of defendant’s stock to McClure in July, 1924, the Bank of Ingersoll increased its indebtedness to the First National Bank of Woodward.

The defendant in his own behalf testified that he had been engaged in the banking business at Woodward for 33 years; he was first cashier, and after the death of his father he was elected president; that he had known John MeClure ever since he started with the Bank of Ingersoll. Defendant stated that when his father organized the Bank of Ingersoll he took stock in the bank; that his father died in March, 1917; that he inherited one-half of his father’s property, and his sister, Mrs. Nichol the other one-half; “my sister and her husband sold their stock in the Bank of Ingersoll some time before I did; I paid no attention to the Bank of Ingersoll; I seen on the letterhead my name printed up there as L. L. Stine, Vice President ; I knew I had never been an officer in the bank other than a director of the bank while my father was in it, and I immediately wrote Mr. McClure or talked with him and asked him about it. I never did attend a stockholders’ meeting of the bank. The First National Bank of Woodward has a capital of $50,000 and surplus of $10,000; it has about 21 correspondents; Mr. McClure advised me another party had been elected vice president in my place; that his wife L. P. McClure had been' elected.” The record shows by the minutes of the meeting of the bank on January 2, 1924, the directors elected for the ensuing year were J. C. McClure, L. P. McClure, and Ben Rackley. The record also shows that on January 2;, 1924, J. O. McClure was elected president, L. P. McClure vice president, and Ben Rackley cashier, of the Bank of Ingersoll.

This is in substance all of the testimony that we deem necessary to refer to for the purpose of arriving at a decision in this case.

The defendant has assigned several errors alleged to have been committed by the court in the trial of this case. Defendant urges that the court erred in overruling his motion for a new trial and rendering judgment against him. The court erred in not sustaining the demurrer to the evidence offered by the defendant at the close of the state’s case. The court erred in overruling his demurrer to the evidence at the close of the case.

The question to be determined in this case is, Was the defendant at the time of the alleged deposit occupying, any position with the bank described by the statute making it a penalty to receive a deposit knowing the bank to be insolvent? The indictment charges him with being a member and managing party of the said Bank of Ingersoll at the time the deposit was received. An effort was made by the state to show that the defendant was the vice president of the bank at the time of the alleged deposit, but the record conclusively shows the election of L. P. McClure as vice president at the annual meeting in January, 1924, prior to the failure of the bank in September, 1924. The record further shows that the defendant had sold J. C. •McClure his 69 shares of stock in the bank in July, 1924, several weeks before the date of the alleged deposit in the bank. It was contended 'by one of the examiners of the banking department of the state that the sale of the stock of the defendant was not completed, for the reason the bank commission had not approved the same.

Sections 4151 and 5318, C. O. S. 1921, provide that shares of stock in a state bank are personal property and) may be transferred by assignment, and the method of the transfer of the certificates of stock.

Section 4177, C. O. S. 1921, provides:

“Any shareholder who' shall sell, assign, or in any manner dispose of his shares of stock, shall, in the event of the insolvency of such corporation, continue to be liable thereon jointly with the owner thereof, to the extent of the liability of such owner, for a period of one year from the date of the transfer of such shares upon the books of such corporation, or until the Bank has been examined and the sale approved by the State Bank Commissioner.”

'Section 4177, supra, relates to the civil liability of the stockholder who sells stock in a bank, jointly with the party to whom the stock is sold, for a period of one year from the date of the transaction, or until the bank has been examined and the sale approved by the state bank commissioner, but there is no requirement in the section quoted that the sale to be valid shall be approved by the bank commissioner. The only benefit given the party selling shares of stock by the approval of the bank commissioner is that it relieves him from further civil liability from the date of the approval by the bank commissioner, if made before the expiration of a year after the stock is sold. We hold that under the statutes of this state bank stock may be sold or transferred without the approval of the bank commissioner, and when a sale is made and the stock sold the owner of the stock is relieved from any further criminal liability in connection with the managing and operating of the bank from the date of sale.

It is urged by the state that the defendant aided and abetted in the receiving and' securing the deposit by his remark in the presence of Mrs. Smith at the time she was discussing with J. C. McClure the question of withdrawing her deposit from the bank.

The record shows that the defendant was called by the state bank examiner to meet him in Ingersoll' and go over the bank’s financial condition; that at the time of the meeting the bank examiner and the defendant had been in consultation, and the examiner was insisting that J. C. McClure resell defendant’s stock back to him, and urging that the sale was not valid. The record further shows that the defendant was president of the First National Bank of Woodward, and that the First National Bank of Woodward was a creditor of the Bank of Ingersoll and had increased its credit to the Bank of Ingersoll after the defendant had sold his stock to McClure in July, prior to the failure of the bank in September. All of the testimony shows that the defendant had nothing to do with the management of the bank or its operation for several years; that he was not elected an officer of the hank for more than two years prior to the date of its failure.

The record does show by witness Constant that, when the bank made reports to the state bank commission, the name of the defendant was written on the bottom of the reports as the vice president; that the defendant was not the vice president at the time the bank failed is successfully shown by the minutes of the annual meeting of the bank showing the election of directors and of the officers of the bank.

It is further urged by the state that the defendant by his action in going to the front of the bank when Mrs. Smith and J. C. McClure were discussing the question of her deposit, and the statements he there made, was sufficient to show: he was aiding and abetting the. officers of the bank in securing; the deposit.

After a careful examination of the record, we hold the testimony in this case is not sufficient to sustain the charg'e against this defendant; that the demurrer of the defendant to the state’s evidence was well taken and should have been sustained.

There are many other errors urged by the defendant in this case to the admission of the testimony, records, and exhibits, but the view we take of this record we do not deem it necessary to consider them. There 'being no substantial testimony to sustain the conviction, the case is reversed and remanded.

EDWARDS, P. J., and CHAPPELL, J., concur.


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    S. S. HAYES v. STATE.
    No. A-6559.
    Opinion Filed May 18, 1929.
    (277 Pac. 954.)

      H. L. Fogg, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, S. S. Hayes, hereinafter called the defendant, was found guilty of unlawful possession of mash, and his punishment fixed by the court at confinement in the county jail for 30 days and a fine of $150 and costs. Motion for new trial was filed and overruled, and the defendant has appealed to this court.

This is a companion, case to case No. A-6558, 43 Okla. Cr. —, 277 Pac. 955. The conviction in this case rests on substantially the same evidence as the conviction in the case No. A-6558, under the provisions of sections 2619 and 2626, Comp. Stat. 1921. The defendant, in addition to his plea of not guilty, also filed a formal plea of former conviction. The oral testimony introduced in this case is that the evidence of the s¡tate’*s witnesses in a former case was substantially the same as that given in the instant case — the same offense, as the term is used in the constitutional guaranty, section 21, art. 2, state Constitution. The statute just referred to does not mean the same offense, eO' nomine, but means the same criminal act, transaction, or omission. In order to constitute a good plea of former jeopardy, the offense in which the plea is made must be the same as that in which jeopardy has attached, but, to make the offense the same, it is not necessary that the informations be identical in language. The offenses may differ in name and yet be the same. 1 Bishop’s New Cr. Law, par. 1050.

If the same testimony will support both charges, it is generally said that the offenses are the same. Estep v. State, 11 Okla. Cr. 103, 143 Pac. 64.

The testimony in this case is admitted to be the same as in No. A-6558. The record discloses that, at the time charged, the defendant, with others not named, had possession of a still and mash. The defendant has been convicted of having possession of a still. In Hirshfield v. State, 11 Tex. App. 207, the court held:

“The State may not split or divide up an offense into different parts, and punish an accused for each of such parts.”

If the state elects through its authorized officers to prosecute an offense in one of its phases or aspects, it cannot prosecute for the same criminal act, or series of acts, under color of another name. The defendant having been put in jeopardy in the trial of case No. A-6558, and been convicted upon a charge of possession of a still, he cannot then be convicted upon a charge of possession of mash in connection with that still; the evidence all being obtained at the same time and under the same search warrant. Hourigan v. State, 38 Okla. Cr. 11, 258 Pac. 1057; Hunter et al. v. State, 43 Okla. Cr. 136, 277 Pac. 953.

The case is reversed and remanded, with directions to dismiss.

EDWARDS, P. J., and CHAPPELL, J., concur.


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    LUTHER YEATMAN et al. v. STATE.
    No. A-6454.
    Opinion Filed May 4, 1929.
    Rehearing Denied May 18, 1929.
    (277 Pac. 261.)
    C. B. Leedy, for plaintiffs in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

.The plaintiffs in error, hereinafter called the defendants, were convicted of possession of mash and compound mixture fit for distillation and' manufacture of alcoholic liquor, and were sentenced to pay a fine of $100 each, and imprisoned in the county jail for 30 days. Motion for new trial was filed and overruled, and defendants have appealed to this court.

The testimony on behalf of the state in brief is that It. E. Devenney testified, he was undersheriff on the 8th day of July, 1926; that O. A. Black accompanied him that day; that he had a search warrant; that in searching the premises described in the search warrant they started up near the head of a canyon and went down, which canyon ran south and a little east, some places along the canyon were banks eight to ten feet high; they saw two saddle horses tied in the brush not very far from the canyon and a little back in the timber; the horses were tied in some brush but could be seen from other directions when youi got close to them; a few minutes after we come up to the horses we heard some one talking a little west and southl of us; we listened 'and about that time saw two fellows come out of a shinnery thicket just south and west; they started to leave; when the parties came out of the shinnery thicket we were about twenty-five yards from where the horses were hitched; the parties we saw there was Luther Yeatman and Jim Castor, the defendants here; when they came out of the thicket toward us Yeatman was rolling down his shirt sleeves; as soon as he saw us Yeatman asked us if we were looking for mash, we told him yes, we were looking for something of that description, and he said they had just found a barrel of mash, and told us where it was. We went over and found a barrel of mash containing about forty gallons; it was in the shinnery thicket, some of them run up a good height, the shinnery thicket was about thirty or forty feet in size; I did not pay any particular attention to the size; I would call it liquor mash, rye mash, it was fermented grain. The mash we found was fit for distillation and manufacture of whisky.

The defendant Yeatman’s right arm was wet, I noticed some of the grains sticking to his arm; he claimed he knew nothing about the barrel of mash 'being there, he had just put Ms arm down there to see what it was. He said they were out looking for some stock. After we found this mash we placed the defendants under arrest. Mr. Black made a search of defendants’ horses after the mash had been found; the defendants were out at the shinnery thicket a short distance away when Mr. Black searched their saddle horses; I don’t know whether they could see Mr. Black or not; we did not have a search warrant calling for the searching of Yeatman or his horse. The mash was found on the property described in the search warrant.

O. A. Black testified in substance as did R. E. Deven-ney that the boys were near the mash when we walked up to where their horses were tied.

The defendants called S. E. 'Castor as a witness, who testified that he knew the land that was searched by the officers on or about the 7th of July, 1926; that his home was about a mile and a half from this place; that he happened to be down on this place to look for his boy; that his boy went to look for the mules at noon while the teams were resting; that Luther Yeatman was there and went with his son; that a man by the name of Roach had possession of this pasture during the year 1925 and 1926; that the boys had been gone about an hour or an hour and a half when he went to look for them; when I got there I first saw Mr. Black and Luther Yeatman and 1 asked them where the kid was, meaning Jim Castor, my son. He is seventeen years old past; I had not been down to that spring or 'creek since about March prior to July 7, 1926; I was looking for some stock for Roach in the pasture; there was a lane running across from my pasture to another pasture between the fields and the stock went back and forth from my pasture to his pasture; the property that was found down there was not my property.

This is in substance the testimony offered by the defendants. The defendants moved the court for an instructed verdict directing the jury to return a verdict of not guilty, which was overruled by the court, and defendants excepted.

An examination of the record in this case shows that the question of the guilt or the innocence of the defendants under the evidence in this case was a question for the jury. This court has repeatedly held that, where there was any competent evidence, even though conflicting, it would not disturb the verdict of the jury. In this case the defendants were found in the shinnery thicket, at or near a barrel that was filled with mash. One of them had his sleeves rolled up, indicating he had been stirring the mash, and their horses were saddled and tied near the thicket where the mash was found.

The defense testimony only tends to show that the father of one of the defendants did not own or have anything to do with this property the officers found, but he was in control of the pasture in which the mash was found, and the stock of Mr. Roach was running back and forth through the lane from his pasture to the Roach pasture. The jury is the exclusive judge of the evidence and the credibility of the witnesses and the weight it will give to their testimony. The court properly instructed the jury as to the law.

Finding no fundamental errors in the record, the judgment is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


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    HOWARD A. TUCKER v. STATE.
    No. A-5572.
    Opinion Filed May 4, 1929.
    (277 Pac. 286.)
    See, also, 42 Okla. Cr. 204, 275 Pac. 382.
    J. I. Howard, A. M. Beets, O. K. Wetzel, and Simpson & Ditto, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Oklahoma County on a charge of criminal libel, and was adjudged to pay a fine of $100.

Defendant at the time charged was editor of “The Record,” a paper then published at Oklahoma City. There was published therein a news item entitled: “Mule Kick! Puts Klan Sheriff in Hospital.” The item then states that the sheriff, Tom Cavnar, has been in the hospital several days, as a result of injuries sustained in a personal encounter between him and County Attorney, J. K. Wright, in which Wright is said to have kicked the sheriff in the stomach. The item upon its face shows that it is based upon rumor afloat in the community, and states that the county attorney denies that he kicked the sheriff. The information alleges that the item published is false and is a libel of said Tom Cavnar, and exposes him to public hatred, contempt, ridicule, and obloquy.

It is first contended that the publication is not libelous in that it does not expose any person to public hatred,, contempt, ridicule, and obloquy as libel is defined by section 1800, Comp. Stat. 1921. Since no innuendo, colloquium, or explanatory circumstances are alleged, the item must be defamatory on its face within the definition of criminal libel as set out in section 1800, supra, in order to charge an offense. That is, it miust be libelous per se. It is extremely doubtful if the publication is libelous upon its face.

It is next argued that the court erred in refusing to admit testimony offered by defendant that it was current rumor throughout the community that a personal encounter had taken place between Cavnar and Wright as stated in the item published. The information charges that the publication is malicious. The publication purports to state a current rumor, and, being such, it was competent for defendant to show the source of information upon which he relied as a basis for the publication, not as proving the truth of the matter published but in order to show an absence of malice. 37 C. J., p. 155, § 699, note 70; State v. Greenville Pub. Co. et al., 179 N. C. 720, 102 S. E. 318; Humbard v. State, 21 Tex. App. 200, 17 S. W. 126; McMahan v. State, 13 Tex. App. 229; People v. Glassman, 12 Utah 238, 42 Pac. 956.

Complaint is next made that the court erred in his instruction No. 7. This instruction in substance tellsi the jury that if they find the publication was made as alleged, and find “that it tends to expose the said Tom Cavnar to public hatred, contempt, ridicule, and obloquy, and that said article published as aforesaid is false and untrue, and tends to deprive said Tom Cavnar of public confidence, and to injure him in his capacity as sheriff of Oklahoma county,” then they should find the defendant quilty. The statute defining libel requires that a publication, in order to constitute libel, shall be a false or malicious unprivileged publication, “* * * which exposes any person, * * * ” etc. Under instruction 7 the jury may convict for a publication which merely “tends” to expose a person to public hatred, contempt, ridicule, or obloquy, while the statute requires that it shall in fact “expose” him. The distinction probably is not great between a publication which tends to expose one and one which in fact exposes one to a certain result. But where an offense is defined by statute, the court in instructing the elements of an offense should do so in the .terms of the statute, or by words of similar import.

For the reasons assigned, the case is reversed and remanded, with instructions to dismiss.

DAVENPORT and C'HAPPEDL, JJ., concur.


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    W. R. SURRELL et al. v. STATE.
    No. A-6438.
    Opinion Filed May 4, 1929.
    (277 Pac. 282.)

      J. GK Ralls, for plaintiffs in error.
    H. H. Cook, for the State.
   CHAPPELL, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Atoka county of the offense of having possession of a still, and their punishment fixed at a fine of $50 and costs and confinement in the county jail for a period of 30 days.

The charging part of the information in this case reads: “* * * The defendant did in said county and state, at the date above named unlawfully, wrongfully, knowingly, and intentionally have in their possession and possess a certain whisky still,, consisting, of boiler, worm, cooler, and other apparatus commonly used in the manufacture of whisky.” It will be noted that the information charges the defendants with having in their possession a still, consisting of boiler, worm, cooler, and other apparatus.

Section 2, c. 42, Session Laws of Oklahoma 1923-24, provides as follows:

“It shall be unlawful for any person to keep, or have in his possession, or knowingly permit any other person to keep, or have in possession upon any premises under the ownership or control of such first party, any still worm or still, without that he first register the same with a proper United 'States officer and obtain from said officer a certificate of said registration and that lie also first file said certificate of registration or a certified copy thereof with the county clerk of the county in which said worm or still is located.”

A proper affidavit for the issuance of the search warrant was filed in the county court by C. G. Maxwell, a deputy sheriff of Atoka county, and a search warrant duly issued thereon by Otis H. Presson, county judge. C. G. Maxwell, deputy, executed this warrant on the 27th day of April, 1926.

The state offered as witness, O. P. Ray, Jr., and C. G. Maxwell, who testified to finding the property described in the return on the premises of Surrell and Brown, the defendants; that a well-traveled path led from the house to the still; that the still was hidden in the top of a tree near the furnace, and mash barrels and other paraphernalia used with the still. The sheriff testified that the defendant -Surrell went with him to the place where the still was found, and showed him where the still iwas hidden in a tree. The state proved by witnesses Ray and Maxwell that the defendants were in possession of these premises and were farming the cultivated land. The defendants testified in their own behalf, admitted they hadi the premises leased and were in possession of same, and admitted they knew the still was there on the place, but denied ever having used it, or ever having made whisky with it.

No questions of law are involved in this case. The defendants were charged with having possession of this still, and there was sufficient evidencé offered by the state to support the verdict of the jury in finding the defendants guilty. This court has uniformly held that, where the evidence is conflicting, it would not disturb the ver-diet of the jury, where there was competent evidence and sufficient, if believed by the jury, to support a verdict of guilty.

The defendants complained that the state introduced incompetent testimony as to the finding of Choctaw beer in the home of the defendants. The still and the beer both being found on the same day and under the same search warrant, it was impossible for the search warrant to be introduced in evidence, or to try the case without the officers testifying as to what they found under the search warrant.

In the case of Koontz v. State, 10 Okla. Cr. 553, in the body of the opinion at page 559, 139 Pac. 842, 844 (Ann. Cas. 1916A, 689), this court said:

“Generally speaking, evidence of other crimes is competent to prove the specific crime charged, when it tends to establish a common scheme or plan, embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other, or to connect the defendant with the commission of the crime charged.”

The evidence being sufficient to support the verdict, and no substantial errors of law appearing upon the record, the cause is affirmed.

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


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    W. R. SURRELL et al. v. STATE.
    No. A-6437.
    Opinion Filed May 4, 1929.
    (277 Pac. 282.)

      J. G. Ralls, for plaintiffs in error.
    H. H. Cook, Co. Atty.., for the State.
   CHAPPELL, J.

The plaintiffs in error, W. R. Sur-rell and J. W. Brown, hereinafter referred to as defendants, were convicted in the county court of Atoka county for the offense of having in their possession 9 gallons of Choctaw beer with intent to barter, sell, give away, and, otherwise dispose of the same, and their punishment fixed at a fine of $59 and imprisonment for 39 days in the county jail. When the state rested, the defendants demurred to the evidence offered by the state, for the reason that it was wholly insufficient to sustain the verdict of guilty, and moved the court to advise the jury to return a verdict of not guilty, which demurrer and motion was by the court overruled.

The defendant filed a motion for new trial, and set out as the principal ground that the evidence was insufficient to support the verdict, and for the further reason that the court admitted incompetent, irrelevant, and immaterial testimony over the objection of the defendants, which motion for new trial was by the court overruled. The defendants filed their petition in error in this court, asking that said cause be reversed upon the grounds set out in the motion for new trial. See Strong v. State, 42 Okla. Cr. 245, 275 Pac. 385, for rule on sufficiency of evidence. The defendants failed to take the witness stand and offered no evidence on their own behalf.

The evidence offered 'by the state being sufficient to warrant the jury in finding the defendants guilty, and no sufficient errors of law appearing upon the face of the record to require said cause to be reversed, same is affirmed.

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