text:
    BILL WILSON v. STATE.
    No. A-9123.
    Feb. 19, 1937.
    (65 Pac. [2d] 417.)
    O. L. Bynum, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error was by information charged with the crime of murder, in the killing of J. L. Harbottle, in Okmulgee county, Okla., on the 26th da,y of February, 1934; was tried and convicted of manslaughter in the first degree, and sentenced to serve a term of four years in the state penitentiary, from which conviction the plaintiff in error has appealed to this court.

The appeal was filed in this court on April 22, 1936. The case was submitted on the record September 2, 1936, and plaintiff in error given ten days to file brief. The time for filing brief has long since expired, therefore the court assumes the appeal has been abandoned, or that the attorney representing plaintiff in error has reached the conclusion there are no errors in the record sufficient to warrant a reversal.

An examination of the record shows that deceased and the defendant met at the homes of a friend, and after visiting for some time a hair brush fell out of the pocket of the deceased, and the defendant remarked that he ought not to try to steal the woman’s brush. Later on the deceased went out of the house. There is a conflict in the testimony as to what the deceased said as he was going out of the house; some of the witnesses stated he said he was going to get his gun; one other witness stated she did not hear him say anything.

During the time the deceased was in the house, the testimony shows the defendant hadi his knife in his hand; shortly after the deceased left the house the defendant followed him out, and in a few minutes came back in the house with blood on his hands and on his knife; he went to a pan of water and washed, and washed his knife, and! made some remark about what he had done to the deceased. Later on it was learned the deceased died from the effects of the wounds inflicted upon him by the defendant.

The defendant’s testimony is in substance the same as the other witnesses except that when he went out in the yard he states the deceased began hitting him with some kind of an iron weapon, and that he had to cat him to save his life. There was no eyewitness to the difficulty that occurred in the yard.

The record discloses that the defendant was without justification in taking the life of the deceased. An examination shows there were no fundamental or prejudicial errors committed by the trial court, and that the defendant was accorded a fair and impartial trial. There are no errors in the record warranting a reversal.

The judgment of the trial court is affirmed.

DOYLE and BAREFOOT, JJ., concur.


source: Caselaw Access Project

author: DAVENPORT, P. J.

license: Public Domain

text:
    MACK HIGGINS v. STATE.
    No. A-9175.
    Feb. 19, 1937.
    (65 Pac. [2d] 546.)
    Amos T. Hall, for plaintiff in error.
    ■Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

Mack Higgins was convicted of the crime of larceny and sentenced to serve a term of ten years in the state penitentiary. Motion for new trial was filed, considered, overruled, and defendant gave notice of appeal. The case-made shows that sentence was imposed on the defendant on November 30, 1935. The case was filed in this court on July 14, 1936, more than six months after the date of the sentence.

The Attorney General has filed a motion to dismiss, on the ground that the case was not placed upon the docket of this court within six months from the date of the sentence. Section 3192, O. S. 1931, in part provides:

“In felony cases the appeal must be taken within six months after the judgment is rendered, and a transcript in both felony and misdemeanor cases must be filed as hereinafter directed.”

This court has repeatedly held that an appeal from a felony conviction must be taken within six months from the conviction, that is, the date on which the judgment was rendered in the trial court. Where the record shows it was not filed within six months after the date of the rendition of the judgment and imposing of the sentence, this court is without jurisdiction. George v. State, 21 Okla. Cr. 240, 241, 205 Pac. 942; Mickle v. State, 21 Okla. Cr. 443, 209 Pac. 194; Heath v. State, 22 Okla. Cr. 122, 210 Pac. 560; Primrose v. State, 26 Okla. Cr. 138, 222 Pac. 702; Washington v. State, 32 Okla. Cr. 392, 241 Pac. 350.

For the reason stated, this court is without jurisdiction, and the motion of the state to dismiss is sustained, and the attempted appeal dismissed.

DOYLE and BAREFOOT, JJ., concur.


text:
    R. HUGHES v. STATE.
    No. A-9122.
    Feb. 19, 1937.
    (65 Pac. [2d] 544.)

      Eaton & Wheeler, for plaintiff in error.
    M:ac Q. Williamson, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was by information charged jointly with Lee Randolph of the crime of the larceny of an automobile; a severance was had and the defendant was tried on the information filed against him, convicted and sentenced to serve a term of five years in the state penitentiary for the crime of larceny of an automobile, and appeals.

The testimony on behalf of the state shows that Jack Lloyd lived near the town of Henryetta, Okmulgee county, Okla. The defendant had lived in the city many years and was employed at one of the smelters; on the 5th of June, 1934, the testimony shows Jack Lloyd drove his Chevrolet four-door car to Henryetta, and parked the same in the front of the Piggly-Wiggly store; a short time after he parked his car he went to the drug store, and went back to where he had parked his car for the purpose of removing it to the back of the Veterans’ Home; when he returned to where he had parked his car the car had been taken.

At the time of the alleged larceny of the car, the proof shows that Lee Randolph’s family was at his father’s home near Denning, Franklin county, Ark., Ozark being the county seat; that the defendant R. Hughes’ family also lived down near Clarksville, Ark. When the car was missed, it was learned the defendant, Hughes, and Lee Randolph had been in the city and had gone down to Arkansas; the officers communicated with the officers at Ozark, in Franklin county, and later went down to the home of Lee Randolph’s father and found the car parked! in front of his home. The defendant was also at the Randolph home, and was placed under arrest with Lee Randolph; the deputy sheriff and other officers returned the defendant, Lee Randolph, his wife, and children back to Henryetta.

There is no. controversy in the testimony that the car taken was the car of the prosecuting* witness Lloyd. The defendant admits it was Lloyd’s car, and admits he and Randolph drove the car from Henryetta to Denning, in Franklin county, Ark., where they were apprehended. The defendant’s defense is that he was intoxicated and did not know he had taken the prosecuting witness’ car; that his brother owned a car very similar to' the car they drove away, and that when they were apprehended at Denning they were ready to start back to Henryetta; they were going to bring the wife and children of Randolph with them, expecting to arrive back home in time for him to return to' work the following morning.

The testimony of the defendant is undisputed that they did not drive the car away with the intent to deprive the owner thereof, or in any way whatever injure the car, that he honestly thought they were driving the car of his brother, and did not realize the car was not the brother’s car until they drove through a town which he believed was Muskogee; they went on to' Arkansas and had been there about five or six hours when apprehended; their intention was to start back in a few minutes to< Henryetta, and return the car to the owner when the officers, placed him under arrest. That he was sobered up by that time and realized it was not his brother’s car, when he discovered it was a four-door car. The foregoing is the substance of the testimony.

The defendant in his petition in error alleges :

“First, that the trial court erred in overruling plaintiff in error’s motion for a new trial; second, that the verdict of the jury is not sustained by sufficient evidence; third, for that the verdict of the jury is contrary to' the law; fourth, for that the verdict of the jury is contrary to both the law and the evidence.”

There are several errors assigned by the defendant, but the only errors we will consider will be the foregoing assignments. In his brief the defendant admits everything alleged by the state except the intent to steal the car. He admits they took the car from where it was parked on the streets of Henryetta, and drove it through the country down to Denning, in Franklin county, Ark., along the public highway, and when they reached Denning they parked the car in front of the house. He did not learn it was a four-door and not his brother’s two-door car until the next day. No attempt was made to conceal the car by the defendant.

It is urged by the defendant that at the time the automobile was driven away from Henryetta by Randolph and himself that he was so intoxicated he did not and could not form an intent to drive the car away and deprive the owner of the same. The defendant’s testimony is undisputed by the state that when they drove the car away for the purpose of making the trip to Arkansas, he thought it was a car belonging to his brother.

In order for the state to sustain the charge against the defendant, it is necessary for the state to specifically prove that the car was taken with the felonious intent on the paid of the takers to deprive the owner thereof permanently, and to convert the same to the takers’ own use. Jackson v. State. 22 Okla. Cr. 338. 211 Pac. 1066.

The statutory definition of larceny nmkes the intent to deprive another of the property taken a particular and essential element constituting the crime, without which it does not exist. As well as upon the uniform classification of larceny by text-writers and courts, as a crime requiring a specific or particular intent. 1 Whart. Cr. Law, pars. 51, 53; 1 McClain Cr. Law, par. 161; Crowell v. State, 6 Okla. Cr. 148, 117 Pac. 883.

Upon a charge of larceny of an automobile, the intent must be felonious and must be to deprive the owner, not temporarily but permanently of the property, and need not be lucri causa.

In Mitchell v. Territory, 7 Okla. 527, 54 Pac. 782, 784, this court stated:

“A taking of personal property with the intent to deprive the owner temporarily of his property, and return the same to him, is not larceny, but is trespass; is not felony, but a misdemeanor. The felonious intent is one of the material ingredients of the crime of larceny, and the burden is on the prosecution to prove this intent to' the satisfaction of the jury beyond a reasonable doubt, the same as any other material constituent of the crime.” McSpadden v. Territory, 7 Okla. Cr. 228, 122 Pac. 1105.

This court, in Huffman v. State, 24 Okla. Cr. 292, 217 Pac. 1070, 1073, in part stated:

“Prom an application of the principle that a man is presumed to intend tn do that which he does do and also to; intend the natural consequences of his acts, juries very naturally and usually do infer, from the acts entering into the crime of larceny and the manner of their commission, the intent to deprive another of the property taken; but this is by no' means the necessary inference, for the intent accompanying the acts may be entirely wanting, or in itself an innocent one. For instance, the property may be taken with an intent to return it, or be taken by mistake, or some intent other than to deprive the owner thereof, in which case larceny has not, of course, been committed. The intent to steal does not follow the act of taking as a legal and conclusive presumption.”

If the theory of the defense is true, then the defendant did not commit the crime for which he was convicted. Section 1891, O. S. 1931, provides:

“Any person in this State who shall steal an automobile or other automotive driven vehicle 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 (5) years, nor more than twenty (20) years.”

This case is a prosecution under section 1891, O. S. 1931, supra, which is a specific statute on the question of the larceny of an automobile, and in order to' sustain a conviction it is necessary that the state prove that the taking and carrying away by the defendant was with felonious intent on his part to deprive the owner thereof permanently, and with the felonious intent to convert the same to his own use.

After a careful reading of the testimony, and considering the acts of the defendant, and the circumstances surrounding the driving away of the car, we hold that the evidence is not sufficient to sustain a conviction of the defendant upon a charge of the larceny of the car with intent to convert the same to his own use and deprive the owner thereof.

For the reasons herein stated, the judgment of the trial court is reversed.

DOYLE and BAREFOOT, JJ., concur.


text:
    EDWIN (SKEET) PERRY v. STATE.
    No. A-9097.
    Feb. 19, 1937.
    (65 Pac. [2d] 543.)
    John P. Thomas and Toby Morris, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error was by information jointly charged with R. E. Barry, Elwood (Corporal) Riddle and Clarence Anderson, with the larceny of nine head of cattle the property of! E. A. Cooper; was tried separately, convicted and sentenced to' serve a term of six years’’ imprisonment in the state penitentiary. Motion for new trial was filed, considered, overruled, and defendant appeals.

Five errors have been assigned by the defendant alleged to have been committed in the trial of his case. In his brief the only assignment argued is that the court trying the defendant was without jurisdiction. The defendant only incorporated in his case-made the testimony in support of his contention that the district court of Comanche county did not have jurisdiction. The alleged larceny of the cattle the defendant contends was on the United States Military Reservation, and that the state court had no jurisdiction to try the defendant.

Elwood (Corporal) Riddle, testifying on behalf of the state, stated he knew the defendant; the defendant got him to help round up some cattle; they rounded up the cattle and drove them to No. 10 gate, a mile or a little better:

“I helped him cut some of them out; the defendant told me they were Cooper’s cattle; when we got the cattle down to the gate the defendant Perry left us and went home; he told me to wait until he came back; he came back between seven and eight o’clock.”

The witness Riddle further stated in response to some questions:

“Q. How long before then was it you drove them off the reservation? A. Drove them right off and loaded them. The defendant did not help drive the cattle after we got them off the reservation.”

It was argued by the defendant in his brief that because of the fact that the cattle were being grazed on the military reservation the district court of Comanche county was without jurisdiction to try him, as the jurisdiction was vested in the United States where the offense was committed on the Military or United States Reservation.

This argument is correct, provided the facts in the record were sufficient to justify and sustain it, but in this case the testimony shows that the cattle were driven off of the reservation and loaded into a truck in Comanche county. The cattle were not only loaded in Comanche county, but were driven through several counties before they reached the market in Oklahoma City, Okla.

Section 2730, O. S. 1931, is as follows:

“When a public offense is committed, partly in one county and partly in another county, or the acts or effects thereof constituting or requisite to the offense, occur in two or more counties, the jurisdiction is in either 'County.” Lasley v. State, 46 Okla. Cr. 179, 287 Pac. 1055.

There is ample evidence in the record to justify the finding of the jury, that the defendant, and those with him conspired to' take the cattle in question from the military reservation and drive them into Comanche county, and load them in a truck. The contention of the defendant that the district court of Comanche county was without jurisdiction is untenable and without merit. The loading of the cattle in the truck in Comanche county after they were driven off of the military reservation is sufficient to' give the Comanche county district court jurisdiction. The trial court properly overruled the defendant’s contention.

There being, no errors appearing in the record, presented by the defendant, the judgment of the trial court is affirmed.

DOYLE and BAREFOOT, JJ., concur.


author: DOYLE, J.

text:
    CHARLES DREW v. STATE.
    No. A-9140.
    Feb. 26, 1937.
    (65 Pac. [2d] 549.)

      Eobert N. Dunn, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, J.

Appellant, Charles Drew, was convicted in the district court of Jefferson county under Penal Code, O. S. 1931, § 1931, upon an information in substance charging that Charles Drew and Earl Young in said county on the 16th day of April, 1935, did unlawfully and bur-glariously break and enter the bam building of one J. W. Wallace, in which building was personal property belonging to' said J. W. Wallace, with the felonious intent to take and steal said personal property and deprive the owner thereof.

Upon his separate trial, the jury by their verdict fixed his punishment at two' years’ imprisonment in the state penitentiary. His motion for a new trial was overruled, and from the judgment rendered on the verdict he appeals.

The only assignments of error presented on the record are in substance that the verdict was contrary to the law and the evidence, and that the court erred in refusing to direct a verdict of acquittal, for the reason that the accomplice’s testimony was not corroborated by other evidence tending to connect the defendant with the commission of the offense.

Thd evidence shows that J. W. Wallace lived one-half mile west of Hastings; while he with his family were attending a play at the Hastings’ school house on the night of April 16th, 1935, his barn was entered and about 40 bushels of Texas Red oats were taken from the grain bin; that he had previously used the grain bin to keep cotton seed in, and 2 or 3 bushels of cotton seed were scattered over the floor of the bin when the oats were put in. Before leaving home that evening, he had fastened the barn door with a locked chain, which he found broken.

John Milburn testified that he was in the feed business in the city of Duncan, that on the morning of April 18, two young fellows sold him 34 bushels of oats in sacks, for which he paid the defendant Drew 56 cents a bushel, and to save resacking them, he gave them other sacks, that a few days later he sold the oats to one of his customers who did not want to pay extra for the sacks, so they dumped them into- his trailer, and it appearing some cotton seed was mixed with the oats, he allowed his customer a little off on that account.

Marshall Thomas testified that on the 18th day of April, 1935, he was working for Mr. Milburn of the Farmer’s Produce Company in Duncan and opened up the place that morning; that Charles Drew, the defendant, was there and said he had oats to sell. Mr. Milburn was away and Drew left and came back and another boy with him about half past seven. Mr. Milburn was there then and bought 17 or 18 sacks of oats from the defendant. That he had known Charles Drew for about seventeen years. He identified Earl Williams as the boy that was with the defendant.

Earl Williams testified that he lived north of Hastings and was in Hastings the night of the play. Charles Drew and Earl Young came by and the defendant Drew asked him if he wanted to go with them to1 get some oats, and he got into their car; they drove over to Mr. Wallace’s place, and went to the barn, the defendant broke the chain on the bam door, and they entered, sacked the oats, and took them out near the road side, then they returned to Hastings and were there about an hour before the play ended, then Earl Young took the defendant’s parents home from the play, when he returned they drove back to where they left the oats, loaded them into the car, and hauled them to the defendant’s place. A night or two afterwards they loaded them into a car and he was with the defendant when he drove to Duncan and there sold the oats; that the defendant gave him $4 out of the money received; that Mr. Drew’s car was used in the transportation of the oats.

Earl Young testified that he had known Charles Drew for about four years, and had been working for the defendant and the defendant’s father for some time; that in their car he drove the defendant’s parents to the schoolhouse in Hastings that night, then went down town and! met Charles Drew in a pool hall, and they went out and got in the car and drove out in the country to' the defendant’s home and there got some sacks, then drove back to town, and there picked up Earl Williams. The three then drove out to Wallace’s place to steal some oats. The defendant broke the chain on the bam door with a bar, then they went in and filled the sacks and carried the oats to the roadside. When the play was over, he drove Mr. and Mrs. Drew home, then he returned to Hastings, and with the defendant and Earl Williams went out and loaded the sacks into' the car and hauled them to' the defendant’s home. Two or three days later the defendant took these oats and said he sold them, and gave him $3.50 or $4 of the sale money, that the defendant did not have any other feed or seed oats at his place at that time.

On cross-examination he stated that he had received a five-year suspended sentence in this case, but did not know why he was not sent to the penitentiary.

The defendant did not testify, but offered the testimony of five witnesses tending to- establish an alibi, in that he was in a pool hall in Hastings that night between the hours of 7 and 9 o’clock.

Aaron Stanley testified that he lives three miles north of Hastings, across the road from the defendant’s place and runs a combine; that last year he cut 12 acres of oats for the defendant; that made about 20 bushels to the acre.

C. E. Drew, father of the defendant, testified that last year his son raised about 250 bushels of oats; that a few1 days before the night of the play at Hastings he visited his son’s place and he would estimate that his son had 75 bushels of oats sacked in the granary; that with his wife he visited the play that night, Earl Young driving their car, and arrived in Hastings fifteen minutes to 7.

Mrs. Euth Drew, wife of the defendant, testified that they had 12 or 15 acres in oats last year, that made about 250 bushels; that about the time Wallace’s bam was entered they had left about 80 bushels of these oats; that they needed a water barrel and were unable to get one at Temple or Hastings, so her husband went to Duncan to get a barrel, and took with him several sacks of their oats to' sell; that no car came to their place the night of the play, and when her husband came home that night he told her he walked out from Hastings.

On cross-examination she admitted that after her husband was arrested she talked to Mr. Wallace and offered to settle with him, saying she would rather give him the money than give it to some lawyer.

When the state rested, and again at the close of all the testimony, counsel for the defendant moved the court to direct the jury to return a verdict of not guilty, for. the reason that the evidence is insufficient to warrant a conviction, and the further reason that the accomplice’s testimony tending to connect the defendant with the commission of the crime charged is not corroborated. Exceptions were taken to the overruling of said motions.

Neither in the petition in error nor the brief filed is any complaint made of any ruling of the trial court in the admission or rejection of testimony, or of the instructions.

It was urged below and is insisted here that the evidence was insufficient to warrant the verdict, and that there was not sufficient corroboration tending' to connect this defendant with the burglary charged or the larceny of the oats.

As to- the effect to be given in prosecutions for burglary to proof of possession of property stolen at the time of the burglary in connection with the breaking and entering, it has been held by this court that the fact of possession of property recently stolen, if such possession is unexplained, is a circumstance tending to show that the defendant is- guilty of the burglary. In such a case, testimony which tends to prove the commission of larceny also- tends to prove the commission of the burglary; but the evidence of unexplained possession of recently stolen property would have no more force and weight in such a case than in a case of larceny. In either, it is but a -circumstance tending to show the guilt of the defendant, if established as a fact by the evidence beyond a reasonable doubt.

The rule which is recognized by the great weight of authority may be stated as follows: There is- no presumption of guilt of burglary attaching to the mere possession of the stolen property by the defendant, but such fact, if the alleged crime be of recent occurrence, has a tendency to- prove his guilt, and if there be other proved circumstances tending to connect him with the commission of the offense, the fact of possession thus aided will sustain a conviction. Graham v. State, 12 Okla. Cr. 84, 152 Pac. 136; Bradley v. State, 18 Okla. Cr. 503, 196 Pac. 730; Ohrisman v. State, 22 Okla. Cr. 52, 209 Pac. 656; Morrow v. State, 23 Okla. Cr. 98, 212 Pac. 1008; Dickson v. State, 26 Okla. Cr. 403, 224 Pac. 723; Newman, v. State, 35 Okla. Cr. 296, 250 Pac. 554; Hart v. State, 57 Okla. Cr. 372, 48 Pac. (2d) 337.

In Ruling Case Law, yol. 1, p. 440, § 34, the text is:

“It is always competent, as bearing on the question of the defendant’s guilt, to show that property stolen from the premises laid in the indictment was recently in the possession of the defendant, or of some third person who is shown to have been concerned in the burglary, or who could have obtained possession of it only from the defendant, provided it is identified with reasonable certainty, and provided that the burglary and the larceny are shown to have been parts of the same transaction. When this proof has been made the defendant has the corresponding right to explain such possession in order to rebut the unfavorable inference arising therefrom. It has not infrequently been said that, on a trial for 'burglary, proof of recent possession of property taken from the premises at the time of the burglary raises a presumption of the defendant’s guilt, by which, however, is only meant that such possession, when established, is a fact from which the defendant’s guilt may be inferred, and not that any burden of proof is thereby cast on the defendant. In other words, it is a circumstance which should be left to the jury, with instructions to give it such weight as they think it entitled to, when considered in connection with all the other evidence, in determining the guilt or innocence of the defendant, and if he fails to give a satisfactory account of his possession, the jury are at liberty to treat the absence of a satisfactory account as a fact in proof of his participation in the offense. Such evidence in the jurors’ minds is strong or weak according to the character of the property, the nature of the possession, and its proximity to the time of the theft.”

Whenever upon appeal it is contended that the conviction was had upon the uncorroborated testimony of an accomplice, it is equivalent to1 a declaration that the verdict is contrary to the law and the evidence, and this is always a legal question. The witnesses Earl Williams and Earl Young were accomplices.

Under the statute (section 3071), a conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the testimony of the accomplice must be corroborated by such evidence as in itself, and without the aid of the testimony of the accomplice, tends to in some degree connect the defendant with the commission of the offense.

If two or more-accomplices testify, the same corroboration is required as if there be but one; an accomplice can neither corroborate himself nor another accomplice. Cudjoe v. State, 12 Okla. Cr. 246, 154 Pac. 500, L. R. A. 1916F, 1251.

In the case of McGill v. State, 6 Okla. Cr. 512, 120 Pac. 297, this court held:

“If there is evidence which corroborates an accomplice and conduces to connect the defendant with the commission of the crime, its sufficiency is for the jury to. determine.”

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

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

Held further:

“It is not essential that the corroborating evidence shall cover every material point testified to by the accomplice, or be sufficient alone to warrant a verdict of guilty. If the accomplice is corroborated as to some material fact or facts by independent evidence tending to connect the defendant with the commission of the crime, the jury may from that infer that he speaks the truth as to' all. Such corroborating evidence, however, must show more than the mere commission of the offense or the circumstances thereof.”

To the same effect are the holdings in each of the following cases: Winfield v. State, 18 Okla. Cr. 257, 191 Pac. 609; Collins v. State, 28 Okla. Cr. 45, 228 Pac. 993; Alvarado v. State, 38 Okla. Cr. 360, 261 Pac. 983; Smith v. State, 40 Okla. Cr. 88, 267 Pac. 283.

Independent of the testimony of the witnesses Williams and Young, connecting the defendant with the commission of the crime, the evidence shows facts and circumstances which, when considered together, tend also to connect the defendant with the crime charged.

When there is such corroboration, its sufficiency is for the jury, and this court will not interfere with the finding of the jury, where there is credible evidence to sustain the verdict.

It follows from what has been said that the court did not err in overruling, the motions for a directed verdict.

Upon the whole case it appears that the defendant had a fair and impartial trial. Finding no prejudicial error in the record, the judgment of the trial court is affirmed.

DAVENPORT, P. J., and BAREFOOT, J., concur.


text:
    JOHN COLE v. STATE.
    No. A-9143.
    Feb. 26, 1937.
    (65 Pac. [2d] 547.)

      Morrill & Snodgrass, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, for convenience referred to, as the defendant, was charged by information with the crime of maintaining a common nuisance; was tried, convicted of maintaining a public nuisance, and sentenced by the court to serve one year in the penitentiary. Prom the judgment and sentence the defendant has appealed.

Section 11489, O. S. 1931, defines a nuisance as follows :

“A nuisance consists in unlawfully doing an act, or omitting to perform a duty, which act or omission either:
“First. Annoys, injures or endangers the comfort, repose, health or safety of others; or,
“Second. Offends decency; or,
“Third. Unlawfully interferes with, obstructs or tends to obstruct, or renders dangerous for passage, any lake or navigable river, stream, canal or basin, or any public park, square, street or highway; or,
“Fourth. In any way renders other persons insecure in life, or in the use of property.”

Section 11490, O. S. 1931, defines a public nuisance, as follows:

“A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon the individuals may be unequal.”

Section 11491, O. S. 1931, states:

“Every nuisance not included in the definition of the last section is private.”

In this case the defendant was by information charged with having committed a common nuisance. The verdict of the jury finds him guilty of maintaining a public nuisance and the court sentenced him upon the verdict returned by the jury, even though he was not charged with a public nuisance.

It is apparent from the effort made by the state in the trial of the case that they intended to and did try the defendant for a public nuisance.

An examination of the record shows that Otto Morris, a deputy sheriff, on or about the 6th day of May, 1935, went to the home of the defendant without a warrant to search the defendant’s premises, or to arrest the defendant, and went into his home where he says the defendant and some three or four others were engaged in a game of craps. The deputy sheriff states the parties did not see him until he got inside the house; he further states after he went into the house he arrested the defendant; the sheriff was with the deputy but did not get into the house until after the parties had been disturbed by the deputy sheriff, and knows nothing about what was going-on in the house.

An effort was made by the state to show that the defendant by an extrajudicial statement had heretofore admitted that gambling had been going on in his home. The corpus delicti cannot be proven in that way. The deputy sheriff further stated that some time prior to May 6, 1935, there were parties at the defendant’s home but he did not see any gambling at that time. Just how long before this charge was filed against the defendant it whs when the deputy sheriff claims to have been at defendant’s home is not shown by the record. So far aS the record shows, it may have been twelve months or two years. The only evidence as to there being a crap game going on at the defendant’s home positively is on May 6, 1935, when Otto Morris, the deputy sheriff, went into defendant’s home without any authority of law and claims he saw this defendant shooting craps.

He was a trespasser from the time he entered upon the premises of the defendant, and when he entered his home as an officer he was also a trespasser, and any evidence secured by him by the unlawful entry is inadmissible against the defendant. Evidence of one gambling game is not sufficient to1 sustain a conviction for a public nuisance.

We fail to find any statute defining a common nuisance, as charged against the defendant. There is no evidence that any of the neighbors, or persons living near the defendant’s home were disturbed in any way whatever.

.Several errors have been assigned by the defendant, but the only ones we deem necessary to consider are:

“1. The verdict is not supported by the law and the evidence.

“2. The court erred in overruling the demurrer of the defendant to' the evidence offered by the state..

“3. Error of the court in overruling the defendant’s motion for a new trial.”

In Bunch v. State, 53 Okla. Cr. 430, 12 Pac. (2d) 704, in the second paragraph of the syllabus, the court in part said:

“Where one is charged with keeping a place in such manner as to constitute a public nuisance, there must be evidence of a positive character that the place was a place of public resort.”

It is not contended by the state that the defendant committed any act which annoyed, injured, or endangered the comfort, repose, health, or safety of others, or which offended decency. Nor is it contended by the state that the nuisance charged against the defendant affected the entire community or neighborhood, or any considerable number of persons. In fact, there was no effort made on the part of the state to show injury or disturbance to any one. The state relied for its conviction of the defendant upon the testimony of Otto Morris, who1 claims he went in the house where a crap game was going on. This testimony might be sufficient if it had been lawfully obtained, which it was not, to maintain a conviction against the parties in the room for shooting craps, but it wholly fails to establish the necessary elements to sustain a conviction against the defendant for maintaining a public nuisance.

This court has often held that where there is any competent testimony to go to the jury it would not disturb the verdict of the jury, but where, as in this case there is no competent testimony to sustain a conviction of the charge for which the defendant was tried, it would reverse the case. Davies v. State, 43 Okla. Cr. 430, 279 Pac. 696.

The testimony is wholly insufficient to sustain the judgment of maintaining a public nuisance, and the demurrer of the defendant to the evidence was well taken and should have been sustained.

The case is reversed.

DOYLE and BAREFOOT, JJ., concur.


author: PER CURIAM.

text:
    CLARA UNDERWOOD v. STATE.
    No. A-9271.
    March 2, 1937.
    (70 Pac. [2d] 1102.)
    Mathers & Mathers, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   PER CURIAM.

Clara Underwood, the plaintiff in error, hereinafter designated as the defendant, was by information charged with having possession on the 16th day of June, 1936, of intoxicating liquor; was tried, convicted, and sentenced to be imprisoned in the county jail for ninety days, and to- pay a fine of $200. From which judgment and sentence she appeals.

The proof in this case shows that the officers went to the home of the defendant and found in one of the rooms of her house one or two parties, one of whom stated he came down to get a bottle oí beer. Near to tbe two-room bouse tbe defendant occupied was located wbat was called a trailer room, in that room tbe officers found forty-four pints and eight or ten gallons in tbe making of beer, commonly known as bome-brew. In the room with tbe defendant was a man by tbe name of Wade.

Tbe defendant denies tbe beer belonged to her andi stated she bad tbe room in which tbe beer was found rented to John Tipton. Tbe testimony shows there was an old bedstead in tbe room but there was no mattress on tbe bedstead. John Tipton was not called to< testify be bad tbe room rented from tbe defendant and was occupying it at tbe time tbe beer was found.

Taylor Eogers, a chemist in tbe State Health Department, testified be made a chemical analysis of a bottle of tbe beer brought to him by tbe officers, and found it contained 5 per cent, alcohol by volume, or 4 per cent, by weight at sixty degrees.

Tbe foregoing is all of tbe testimony necessary to be set forth in this opinion.

Tbe evidence is sufficient to sustain a conviction. Tbe record in this case does not show any one around tbe place-was intoxicated but was only drinking a bottle of beer at tbe time tbe officers arrived. Considering all of the testimony and the circumstances surrounding the buildings, we believe tbe punishment imposed is excessive, and should be modified from ninety days in jail to thirty days' in jail, and from a fine of $200' to a fine of $50, and as modified tbe judgment of the trial court is affirmed.


text:
    BILLIE BURRIS v. STATE.
    No. A-9226.
    March 5, 1937.
    (65 Pac. [2d] 1028.)
    Geo. L. Sneed, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called the defendant, was convicted of assault with intent to kill, and sentenced to serve a term of three years in the penitentiary, and appeals.

The record in this case was filed in this court on November 13, 1936; no brief has been filed in support of the defendant’s assignment of errors. A careful examination of the record discloses no fundamental error. The evidence is sufficient to support the verdict of the jury. The case is therefore affirmed.


text:
    JIM RICHARDS v. STATE.
    No. A-9234.
    March 5, 1937.
    (65 Pac. [2d] 1029.)
    A. C. Bruce, for plaintiff in error.

      Mac Q. Williamson, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called the defendant, was convicted of the unlawful possession of intoxicating liquor, and sentenced to pay a fine of $50 and to be confined in the county jail for BO days.

The case-made, with petition in error attached, was filed in this court on November 27, 1936; no brief has been filed in support of the defendant’s assignment of errors. A careful examination of the record discloses no fundamental error. The evidence is sufficient to support the verdict of the jury.

The case is therefore affirmed.


text:
    BILL McKISSACK v. STATE.
    No. A-9133.
    March 5, 1937.
    (65 Pac. [2d] 1239.)

      W. B. Garrett, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, for convenience referred to as the defendant, was by information charged with the larceny of one mule; was tried, convicted, and sentenced to- serve five years in the state penitentiary. From the judgment and sentence the defendant appeals, and alleges eleven errors committed in the trial of his case. The eleventh assignment being:

“That said court erred in overruling the motion of plaintiff in error for a new trial, and particularly on the ground of newly discovered evidence as set out in plaintiff in error’s amended motion for a new trial.”

This assignment covers all the other errors assigned' by the defendant, and it is not deemed necessary to set them out in full.

The testimony upon which the state relied for a conviction is in substance as follows: G. A. Heckhart stated:

“I live eight miles east and two and one-half miles north of Vici; on April 15, 1985, I lived in Vici and was working for the Stromberg Live Stock Pavilion Company; my duties were to enter the price of all stock purchased and the man who bought it on cards, and send one card to the office and one to the bidder; I was working the morning of April 15th, beginning about 6 o’clock; when 1 first saw the defendant Bill McKissack be ivas leading a mule, walking by the side of the mule as it was being led by Q. A. Mills; he had on a dark hat and sweater, and I think the sweater had a letter B on it; you could call the mule a mouse-colored mule, or brown mare mule; it had larger ears that most mules have; I imagine it Aveighed about 1,200 pounds, and was about lS1/^ or 16 hands high; I heard Q. A. Mills tell the defendant he Avould pay him $160 for the mule; I first saw the defendant about 8 o’clock in the morning, several hours before the regular sale begun. This mule was sold to Q. A. Mills.
“State Exhibit B is Avhat is known as a tail tag; when a mule comes in to the pavilion and is sold, we put a tag on its head and on its tail.”

Charles Beese, testifying for the state, stated:

“I work for the Stromberg Commission Company; Avas working there on the 15th day of April, 1935; I saw the defendant Bill McKissack there about 8:30; he and Mr. Mills came in the offce and reported an alley trade; the defendant Avas going under the name of W. H. McKinley; they gave me the number of this mule and told me Mr. Mills had bought it in the alley for $160; Mr. Millsi said go ahead and pay him, it was all light; I told them as soon as Mr. Stromberg came down.
“State Exhibit A is in the same condition now as when I made it; this is my writing on the exhibit, and shows the purchase of the mule from W. H. McKinley to Q. A. Mills, and the amount of the commission charges, and the total amount paid McKinley. After the sale Avas reported the defendant Avanted to get paid and he had to wait until Mrs. Stromberg came down; Avhen she came I gaAre her the account sales and she wrote out a check; I went to the door and called to Mr. McKinley and told him Mrs. Stromberg was there, and I heard her ask if that was W. H. McKinley, and she gave the check to him.”

Mrs. C. A. Stromberg, who wrote the check and delivered it to the party giving his name at the time as W. H. McKinley, identified tbe defendant Bill McKissack as being the man who received the check.

Pauline Trimble, who was employed in the bank at Vici, April 15, 1935, identified the defendant as being the man who presented the check to the bank, giving his name as Bill McKissack, and for whom she issued a cashiers check for $100 and gave him $57.25 in money.

L. A. W. Vincent, cashier and secretary of the Farmers & Merchants Bank, at Arnett, Okla., at whose bank the defendant presented the $100 cashier’s check given by the bank of Vici, identified the defendant as being Bill McKissack who presented the cashier’s check for $100 at his bank and asked to have it cashed. Vincent further stated he did not cash the check until he had phoned the bank at Vici, and Miss Trimble described the man to whom she had given the $100 cashier’s check, and upon that' description the Farmers & Merchants Bank cashed the $100 check.

Other witnesses testified to the description of the mule that was stolen, and the proof furnished; that when the mule was bought at Vici the company put a tag. on the mule’s head and its tail. This mule was sold to another party, and by the time the owner of the mule could trace it it had been sold to a man at Atlanta, Ga. The owner and another man went to- Atlanta and identified the mule. The tag on the mule’s tail was still attached to the mule’s tail and proved to be the tag placed upon it by the Stromberg Company, at Vici, before the company sold it.

The foregoing is the substance of the testimony introduced by the state. No testimony was offered by the defendant.

Defendant in his brief urges that the court erred in permitting1; certain hearsay testimony with reference to where the mule was sold by the defendant and where it was shipped to Fort Worth, Tex., and from Fort Worth tO' Atlanta, G-a., and insists that the admission of the testimony complained of which was given by Oraig Cooper was sufficient to warrant the court in reversing the case. He also contends that the testimony of Cooper shows that the description of the mule given by him was not the description of the mule given in the information.

On the question of the hearsay testimony, the defendant does not set out the testimony complained of as hearsay, and this court cannot delve into the realms of the mind of the defendant and the record and tell what testimony the defendant has reference to as being hearsay. Some of the testimony given, if separated from the other testimony of Craig Cooper, would in substance amount to hearsay, but as the defendant does not point out what testimony was hearsay, and in view of the fact that the testimony of Craig Cooper, from whose possession the mule was stolen, in detail practically covers that with reference to where the mule was stolen and shipped, and up to the time it was recovered, and the record further shows that some of the witnesses call the mule a mouse-colored! or brown mare mule, weighing about 1,200 pounds, and being about 15% to 16 hands high. All of the testimony of the state was before the jury, and many authorities are cited by the defendant on the question of hearsay testimony. It is not disputed by the state that hearsay testimony is inadmissible and would not be sufficient to sustain a conviction.

This court has repeatedly held that a conviction will not be reversed on the ground of improperly admitted evidence or the exclusion of evidence, unless after an ex-animation of the entire record it appears there has been -a miscarriage of justice or the substantial violation of some constitutional or statutory right of the defendant. Keltner v. State, 52 Okla. Cr. 150, 3 Pac. (2d) 451.

The admission of incompetent evidence is not ground for reversal unless it affirmatively appears from the record that the appellant was injured thereby. Manning v. State, 7 Okla. Cr. 367, 368, 123 Pac. 1029; Sparks v. Territory, 16 Okla. 127, 83 Pac. 712; Littleton v. State, 19 Okla. Cr. 461, 200 Pac. 716; Foreman v. State, 38 Okla. Cr. 50, 259 Pac. 176; Mayse v. State, 38 Okla. Cr. 144, 259 Pac. 277.

There is nothing in the record to show that the court admitted any testimony improperly that biased or prejudiced the minds, of the jurors against the defendant.

It is next urged by the defendant that the court erred in refusing to grant him a new trial on the ground of newly discovered evidence, which was unknown to the defendant before the trial of his case, and not ascertained by the defendant until within three days before the date of the trial. The defendant urges that in the trial of the case he learned from the testimony that a man by the name of Q. A. Mills, who purchased the mule for which this defendant is charged with stealing, and that Q. A. Mills’ name was not on the information as a witness. He states that since the trial he has located the said Q. A. Mills, who resides at Ames, Okla., and that the said Q. A. Mills, if called as a witness, would have testified this defendant was not the man who sold him the mule, and was not the man representing himself to be W. H. McKinley. The defendant’s motion for a new trial on the ground of newly discovered evidence was filed, considered by the court, and overruled.

This court has often held that before newly discovered evidence can be regarded as sufficient to warrant the granting of a new trial, there must be reasonable probability that a different result would have happened if such evidence had been introduced, and said evidence must not be cumulative. If the evidence of Mills had been admitted, he would have testified that the defendant in this case was not one and the same as the man W. H. McKinley from whom he purchased the mule. His testimony would] have been in conflict with several other witnesses who- had testified and identified McKissack as being the W. H. McKinley who had received the check for the mule, and had received part of the money from the bank, and a cashier’s check for the balance, and went to Arnett and cashed the cashier’s check and received the money. His testimony would only tend to contradict the unimpeached and un-contradicted testimony of the other witnesses for the state.

In Moseley v. State, 12 Okla. Cr. 402, 157 Pac. 708, 710, the court in part stated:

“This court by numerous decisions has held that the granting of a new trial on the ground of newly discovered evidence is largely within the discretion of the trial court, and its ruling thereon will not be disturbed except for an abuse of this discretion; the presumption being that the discretion was properly exercised. On the record before us there is nothing to indicate that the court committed error in overruling the motion for a new trial.”

In Moreland v. State, 58 Okla. Cr. 292, 52 Pac. (2d) 97, 99, this court again stated the rule as follows:

“It is well settled that the granting of a new trial on newly discovered testimony is largely within the discretion of the trial court, and is. not to be exercised except when there is reasonable probability that, if the evidence had been introduced, a different result would have been reached, and that courts will not ordinarily grant new trials upon the ground of newly discovered evidence where the evidence sought to be introduced is cumulative or for mere purpose of impeachment. Howey v. State, 9 Okla. Cr. 453, 132 Pac. 499.”

Section 3062, O. S. 1931, in part provides:

“On the trial of an indictment or information, questions of law are to- be decided by the court, and the questions of fact are to be decided by the jury.” Davies v. State, 43 Okla. Cr. 430, 435, 279 Pac. 696; Robinson et al. v. State, 60 Okla. Cr. 443, 65 Pac. (2d) 212, and Cole v. State, 61 Okla. Cr. 57, 65 Pac. (2d) 547.

The jury is the exclusive judge of the weight of the evidence, and if there is a clear conflict in the evidence, or it is such that different inferences can properly be drawn from it, this determination will not be interfered with unless it is clearly against the weight of the evidence, or appears to have been influenced by passion or prejudice. Tillery v. State, 23 Okla. Cr. 226, 214 Pac. 198; Choate v. State, 37 Okla. Cr. 314, 258 Pac. 360; Cole v. State, 18 Okla. Cr. 430, 195 Pac. 901; Pickett v. State, 35 Okla. Cr. 60, 248 Pac. 352; Clemmer v. State, 56 Okla. Cr. 354, 40 Pac. (2d) 37.

The record fails to disclose that the jury was influenced by passion or prejudice. The court did not err in overruling the motion of the defendant for a new trial.

The record has been carefully examined, and the evidence is amply sufficient to sustain a conviction. The defendant was accorded a fair and impartial trial. The court properly advised the jury as to the law applicable to the facts. Finding no error in the record to justify this court in reversing the case, the judgment of the trial court is affirmed.

DOYLE and BAREFOOT, JJ., concur.


text:
    ELMER INMAN v. STATE.
    No. A-9094.
    March 5, 1937.
    (65 Pac. [2d] 1228.)

      A. O. Brewster, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, J.

(after stating the facts as above). This is an appeal from the district court of Rogers county wherein the defendant, Elmer Inman, was convicted of the crime of robbery with firearms and sentenced to serve a term of five years imprisonment in the state penitentiary.

It is first contended that the trial court erred in overruling the demurrer to the information.

The information is in part as follows:

“Did then and there on said date and in said county and state, wilfully, unlawfully, feloniously and with intent to rob W. E. Kissee and Mrs. W. E. Kissee, did then and there point pistols and firearms at and towards the persons and bodies of the said W. E. Kissee and Mrs. W. E. Kissee, and threaten to shoot the said Kissees, if they resisted * * * and by means of such pointing of said pistols and such threatening, did then and there produce in the minds of them fear of immediate and unlawful injury to their persons sufficient to overcome their resistance * * * and the (said defendant and others) did take from off the persons and immediate presence of the said. W. E. Kissee and Mrs. W. E. Kissee $238, good and lawful money of the United States and certain jewelry, guns and luggage of the value of $1,593 the personal property of the said W. E. Kissee and Mrs. W. E. Kissee, who were in the immediate possession and control of said money and personal property, and they, the said defendant and others did then and there steal, take, and carry away from the possession and from off the persons and immediate presence of them the said W. E. Kissee and Mrs. W. E. Kissee, said money and personal property with the felonious intent of the said defendant and others to deprive the said W. E. Kissee and Mrs. W. E. Kissee, the true owners permanently thereof.”

It is insisted that the language “from off the persons and immediate presence” is not sufficient to charge robbery, and that said information is bad for duplicity.

We do not think there is any merit in this contention.

Our Penal Code section 2542, O. S. 1931 (21 Okla. St. Ann. § 791), defines “robbery” as follows:

“Robbery is a wrongful taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.”

And section 2543 ( 21 Okla. St. Ann. § 801) :

“That any person or persons who, with the use of firearms or any other dangerous weapons, attempts to rob or robs any person or persons, or who' robs or attempts to rob any place of business, residence or banking institution or any other place inhabitated or attended by any person or persons at any time, either day or night, shall be guilty of a felony, and, upon conviction therefor, shall suffer punishment by death, or imprisonment, at hard labor, in the state penitentiary, for a period of time of not less than five years, at the discretion of the conrt, or the jury trying the same.”

This last section does not define the crime of robbery, but merely increases the punishment for the crime as defined by section 2542, supra, when accomplished with the use of firearms or any other dangerous weapon, and is in effect a statute of classification. Generally speaking, robbery is a larceny, with aggravated features added, and the larcenous taking of money or goods of any value from the possession of another from his person or immediate presence, against his will by use of force or by putting in fear, is robbery. Randall v. State, 33 Okla. Cr. 262, 243 Pac. 983; Richards v. State, 22 Okla. Cr. 199, 210 Pac. 295; Wilson v. State, 28 Okla. Cr. 102, 228 Pac. 1108; Wells v. State, 34 Okla. Cr. 179, 245 Pac. 1007; Simpson v. State, 40 Okla. Cr. 58, 266 Pac. 783.

In the case of Hill v. State, 19 Okla. Cr. 406, 200 Pac. 253, this court said:

“The information in this case charged the taking of money from the person of another by means of force and fear, brought about by pointing a revolver and threatening to shoot if resisted, followed by the allegation, ‘Said defendants did then and there wrongfully, willfully, unlawfully, forcibly, violently, and feloniously take, steal, and carry away.’ Held to sufficiently charge the crime of robbery, and, the words ‘steal and carry away’ being mere surplusage, the information was not bad for duplicity.”

Section 2892, O. S. 1931 (22 Okla. St. Ann. § 410), Code of Criminal Procedure, provides:

“No indictment or information is insufficient, nor can the trial, judgment, or other proceedings thereon be affected, by reason of a defect or imperfection in the matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits.”

While there is much repetition and some surplusage in the information, the acts constituting the crime are set forth therein with sufficient certainty to appraise the defendant of the offense charged against him, and it includes all of the essential elements of robbery as defined by our Criminal Code.

It follows that the court did not err in overruling, the demurrer to the information.

It is next contended that the trial court abused its discretion in denying the application for a continuance.

In the affidavit for continuance the defendant stated i

“That he has been confined in the county jail of Rogers county since May 23, 1935, that on his preliminary examination he was represented by the firm of Right & Right of Claremore, and A. C. Brewster of Pryor, Oklahoma, that since that time he has had no counsel; has had no money or means or friends by which and through which he could employ counsel. That Messrs. Right & Right had their names withdrawn as attorneys and that A. C. Brewster was appointed by the court at the expense of Rogers County to appear as his attorney, that A. C. Brewster came to court this morning by request of the wife of the defendant, she saying that she wanted the court to appoint an attorney for the defendant, that no' effort has been made by any attorney to obtain witnesses at this term of court for the reason they have not been in the case since the trial of the preliminary, and the defendant has not obtained any witnesses and is not ready for trial.
“The defendant says as a further reason for continuance that he is wholly physically unable to attend the trial of this cause and will submit the testimony of Dr. C. W. Beson, his attending physician, and will show the court he is physically unable to attend the trial at this time for the purpose of conducting his defense before the jury.
“Defendant further says that recently the persons who are guilty of this robbery have been apprehended and it is now known by the officers of Rogers county who the persons are who committed this crime.”

A hearing was had. The defendant called W. A. Carson, sheriff of Rogers county, who testified that E. A. In-man had been in his custody since some time in July, and is now present in court, that he had informed him that Toby Harris, at Neosho, Mo., knew who committed this crime, and witness went np there last week and interviewed Toby Harris who said he knew nothing about it.

Dr. C. W. Beson testified that on September 14, he examined the defendant in the county jail and found his feet injured, that he has not called him since, that he did not believe the defendant physically fit to be in court for two or three days, that he had heard that the defendant received these injuries by trying to escape from jail, that the only trouble he suffers with is just his ankles and feet.

In reviewing, the refusal of a continuance, all the facts and circumstances disclosed by the record and the testimony on the trial will be considered by this court in determining whether or not the exercise of discretion by the trial court was abused in denying the application. Tucker v. State, 9 Okla. Cr. 587, 132 Pac. 825; Harrison v. State, 10 Okla. Cr. 210, 135 Pac. 948; Nix v. State, 20 Okla. Cr. 373, 202 Pac. 1042, 26 A. L. R. 1053.

No rule is more firmly established in this state than that this court will not reverse the judgment of the trial court upon the ground that it refused to grant a continuance, unless it appears that such court has manifestly abused its discretion in refusing it. Killion v. State, 19 Okla. Cr. 215, 198 Pac. 625; Anderson v. State, 21 Okla. Cr. 193, 207 Pac. 977.

In this case the affidavit does- not disclose such diligence on the part of the defendant to procure the attend anee of his witnesses as the law under the circumstances of the case required, or such as made it the duty of the trial court to grant the continuance. And the defendant was present in court at the time of the hearing of the motion for continuance, where the trial judge had opportunity to observe his physical condition.

In our opinion, the application lacks the evidence of good faith as well as that of due diligence.

From all that appears in the record, we conclude that tiie trial court did not abuse his discretion in overruling the motion for a continuance.

.Several assignments of error are based on exceptions taken to the court’s rulings on the admission and exclusion of testimony, as raised by the defendant. They appear to be without sufficient merit to require discussion.

Complaint is also made of two- of the instructions given by the court which were excepted to- by the defendant.

There were no instructions requested or presented to-be given on the part of the defendant. The instructions complained of have been examined and considered sufficient in connection with the evidence in the case.

Another assignment is error in oral proceedings when the jurors were brought into- court before the return of the verdict, all in the absence of the defendant’s attorney.

An examination of the grounds of the motion for new trial show no such question was raised or presented to the trial court. The question cannot be raised in this court for the first time.

Finally it is urged that tbe verdict of tbe jury is not sustained by tbe law and is contrary to tbe evidence.

In this case there can be no doubt as to tbe sufficiency of tbe evidence. Two eyewitnesses, tbe victims of tbe robbery, positively identified this defendant as one of tbe robbers. Tbe credibility of these witnesses was in no way questioned, nor was any testimony offered on tbe part of tbe defendant to contradict them, except tbe bare statement of tbe wife of tbe defendant that be was not in Claremore on tbe day of the robbery. And a defendant convicted of crime upon such positive, convincing testimony as appears in this record has no legal right to a reversal of tbe conviction on tbe grounds that bis defense was frustrated in whole or in part, unless it is shown that there is some probability that such defense is true.

Having examined the record and each of tbe several assignments of error, we find nothing that merits serious consideration, and were it not for tbe fact that tbe information charges a capital crime, we would feel constrained to affirm tbe conviction for tbe reason that tbe errors assigned are without sufficient merit to> require discussion.

Finding no material error in the record, tbe judgment of tbe trial court is affirmed.

DAVENPORT, P. J., and BAREFOOT, J., concur.


author: BAREFOOT, J.

text:
    Ex parte LEWIS RABINWITZ.
    No. A-9262.
    March 11, 1937.
    (65 Pac. [2d] 1236.)

      Taut, Stokes & Estes and J. D. Lydick, for petitioner.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Fred Cunningham, Pardon and Parole Atty., and John Reading*, City Atty., for the State.
   BAREFOOT, J.

The relator has been taken into custody upon a warrant issued by the Governor of this state, upon a requisition of the Governor of Montana, upon the ground that he is a fugitive from justice from that state.

There he is charged with the crime of obtaining money under false pretense in the sum of $440. The relator, questioning the legality of his detention, sued out a writ of habeas corpus in the district court of Oklahoma county, which said writ was denied. Relator then sued out a writ of habeas corpus in this court, alleging that he is being illegally restrained of his liberty and unlawfully imprisoned and restrained by Stanley Rogers, sheriff of Oklahoma county; it being his contention that he was not present in the demanding state at the time of the commission of the- alleged crime. He states that he was charged with the commission of the crime in Great Falls, Mont., on the 28th day of May, 1936, and that on that date he was in the town of Humphreys, Mo.

When this cause came on for hearing, the same was continued, and both sides were given permission to' take depositions, and depositions were taken by each of the parties and were all filed and read at the hearing in the case. Oral testimony was also given.

It is admitted by relator that the extradition papers from the state of Montana are regular upon their face, and they do not in any way question the legality of said papers; their sole contention being that the relator was not in the demanding state at the time that he crime was committed, and is not a fugitive from justice from that state.

The testimony at the hearing was in direct conflict. Twenty-one Avitnesses testified for relator, testifying that he was in the town of Humphreys, Mo., on the 26th, 27th, and 28th of May, 1936, attending the funeral of his mother-in-law, who had died on the 26th, and was buried on the 27th, and that he was present in that city on the 28th day of May, and attended a dinner until about 2 o’clock p. m., and afterwards left there in the evening of that date for Kansas City.

The evidence by the demanding state of Montana was of three witnesses, including the prosecuting witness, who positively identified the photograph of relator as being the person who was present in Great Palls, Mont., at 11 o’clock on the 28th day of May, 1936; the photograph having been taken of the relator after he was arrested in Oklahoma City.

The evidence showed that the relator was in the diamond business, and at the time of his arrest had in his possession diamonds valued in the sum of $27,000.

The charge in the information against the relator was that he, under the name of Dave Goldberg, was present with one Michael Montinescu, and that they sold four diamonds to a priest by the name of Rev. Joseph Peters, for the sum of $440, which they represented to be of the value of $1,000, and which in truth and in fact were practically worthless.

It will thus be seen that the testimony offered at the hearing, before this court was of conflicting nature. Attorneys for relator read to the court, at the hearing, from the case of People ex rel. Genna v. McLaughlin, 145 App. Div. 518, 130 N. Y. S. 458, 461. In this case it is held:

“Before a warrant of extradition can be sustained, it must appear as a jurisdictional fact that the prisoner is a fugitive from justice; that is, it must be shown that he was actually present in the demanding state when the crime was committed.”

And the court holds:

“The true rule should be that this question of jurisdictional fact must be determined by the court as is any other question of fact which it has the power and duty to determine, according to the rule of the common law as to the preponderance of evidence.”

In other words, the court in this case holds that it only has to be proven by a preponderance of the testimony.

The doctrine in this case has been specifically overruled in the case of People ex rel. Steele v. Mulrooney, 139 Misc. 525, 248 N. Y. S. 520, 521, where the court says:

“As to the first contention, the rule of law is that the relator must ‘conclusively’ establish that he was not present in the demanding state at the time of the commission of the crime. Biddinger v. Commissioner of Police of City of New York, 245 U. S. 128, 134, 38 S. Ct. 41, 43, 62 L. Ed. 193; Hogan v. O’Neill, 255 U. S. 52, 56, 41 S. Ct. 222, 223, 65 L. Ed. 497. This is not to be determined in the same manner as other questions of facts, according to the ordinary preponderance of the evidence, as apparently was formerly held in People ex rel. Genna v. McLaughlin, 145 App. Div. 513, 130 N. Y. S. 458, and as here contended! by the relator, but must be conclusively established.”

The court further on in the opinion used this expression : “The relator apparently relies mainly upon two cases, People ex rel. Genna v. McLaughlin, supra, which, as shown above, does not correctly state the rule of law applicable.”

In the case of People ex rel. Hauptmann v. Hanley, from tbe Supreme Court of New York County, 153 Misc. 61, 274 N. Y. S. 813, 817, the court says:

“When the relator contends be was not present in tbe demanding state at tbe time of the commission of tbe crime, tbe rule of law is, be must ‘conclusively’ establish that be was not present. * * * While People ex rel. Genna v. McLaughlin, 145 App. Div. 513, 130 N. Y. S. 458, seems to be authority for determining such claim by the preponderance of tbe evidence, the rule of law now is that it must be conclusively established.”

The Supreme Court of the United States, in the case of Hyatt v. New York ex rel. Corkran, 188 U. S. 691, 23 S. Ct. 456, 459, 47 L. Ed. 657, where the agreed statement of facts stated that relator was not in the demanding state on the date alleged in the indictment, in the opinion used this language:

“If upon a question of fact, made before the governor, which he ought to decide, there were evidence pro' and con, the courts might not be justified in reviewing the decision of the governor upon such question. In a case like that, where there was some evidence sustaining the finding, the courts might regard the decision of the governor as conclusive.”

See, also, Roberts v. Reilly, 116 U. S. 80, 6 S. Ct. 291, 29 L. Ed. 544.

In the case of Illinois ex rel. McNichols v. Pease, 207 U. S. 100, 28 S. Ct. 58, 62, 52 L .Ed. 121, Judge Harlan reviews all the cases that had been presented to- the Supreme court of the United States prior to that time and gives a summary of all facts necessary to- be proved by both the demanding state and the relator in cases of this character, and then says:

“When a person is held in custody as a fugitive from justice under an extradition warrant, in proper form, and showing upon its face all that is required by law to- be shown as a prerequisite to its being issued, he should not be discharged from custody unless it is made clearly and satisfactorily to appear that he is not a fugitive from justice within the meaning of the Constitution and laws of the United States. We may repeat the thought expressed in Appleyard’s Case [203 U. S. 222, 27 S. Ct. 122, 51 L. Ed. 101, 7 Ann. Cas. 1073], above cited, that a faithful vigorous enforcement of the constitutional and statutory provisions relating to fugitives from justice is vital to the harmony and welfare of the states, and that ‘while a state should take care, within the limits of the law, that the * * provisions of the Constitution be not so- narrowly interpreted as to enable offenders against the law of a state to find a permanent asylum in the territory of another state.’ ”

In the case of People v. Mulrooney, supra, the court, further quoting from the case of Munsey v. Clough, 196 U. S. 364, 25 S. Ct. 282, 49 L. Ed. 515, in the opinion delivered by Mr. Justice Peckham, says:

“ ‘But the court will not discharge a defendant arrested under the governor’s warrant where there is merely contradictory evidence on the subject of presence in or absence from the state, as habeas corpus is not the proper proceeding to try the question of alibi, or any question as to the guilt or innocence of the accused.’
“In Biddinger v. Commissioner of Police of City of New York, supra, Mr. Justice Clarke in the United States Supreme Court, in referring to habeas corpus proceedings, said:
“ ‘The scope and limits of the hearing' on habeas corpus in such cases has not been, perhaps it should not be, determined with precision. Doubt as to the jurisdiction of the courts to review at all the executive conclusion that the person accused is a fugitive from justice has more than once been stated in tbe decisions of this court. Ex parte Reggel, 114 U. S. 642, 5 S. Ct. 1148, 29 L. Ed. 250; Roberts v. Reilly, 116 U. S. 80, 6 S. Ct. 291, 29 L. Ed. 544; Appleyard v. Massachusetts, 203 U. S. 222, 27 S. Ct. 122, 51 L. Ed. 161, 7 Ann. Cas. 1073, but the question not being necessary for the disposition of the cases in which it is touched upon, as it is not in this, it is left undecided. This much, however, the decisions of this court make clear: That the proceeding is a summary one, to' be kept within narrow bounds, not less for the protection of the liberty of the citizen than in the public interest; that when the extradition papers required by the statute are in the proper form the only evidence sanctioned by this court as admissible on such a hearing is such as tends to prove that the accused was not in the demanding state at the time the crime is alleged to have been committed; and, frequently and emphatically, that defenses cannot be entertained on such a hearing, but must be referred for investigation to the trial of the case in the courts of the demanding state.’ ”
“In Hogan v. O’Neill, supra, Mr. Justice Pitney in the United States Supreme Court said:
“ ‘Whether in fact (the relator) was a fugitive from justice was for the determination of the Governor of New Jersey. * * * This conclusion must stand unless clearly overthro wn, which appellant has not succeeded in doing.”

It is our opinion, therefore, that there being a conflict in the testimony as to whether or not the relator was in the demanding state at the time alleged in the information, that it has not been conclusively shown that he was not present in said demanding state and that the writ in this case should be dismissed and relator remanded to the custody of the sheriff of Oklahoma county.

DAVENPORT, P. J., and DOYLE, J., concur.


text:
    W. E. DENNIS v. STATE.
    No. A-9146.
    March 12, 1937.
    (65 Pac. [2d] 1236.)
    J. L. Yertrees, and E. B. Anderson, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error hereinafter called the defendant was convicted of the crime of disposing. of mortgaged property, and sentenced to the penitentiary for one year, and appeals.

The case-made, with petition in error attached, was filed in this court on May 29, 1936; no brief has been filed in support of the defendant’s assignment of errors. A careful examination of the record discloses no fundamental error. The evidence is sufficient to support the verdict of the jury. The case is therefore affirmed.


author: DAYENPOBT, J.

text:
    FRANK HANDLEY v. STATE.
    No. A-9117.
    Dec. 18, 1936.
    Rehearing Denied March 12, 1937.
    (65 Pac. [2d] 1026.)

      J. Q. A. Harrod, Laynie Harrod, and Melone, Porter, Melone & Melone, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DAYENPOBT, J.

The plaintiff in error, the defendant in the trial court, was charged with the possession of intoxicating liquor with intent to barter, sell, give away, or otherwise furnish the same to others; was convicted and sentenced to serve 60 days in the county jail and to pay a fine of $150 and cost. From which judgment and sentence he appeals.

The testimony on behalf of the state shows that the defendant lives in El Reno, Okla.; that George Menz owns a farm on which there is an eight-room house, and basement; that his son Lawrence Menz was occupying the premises. Lawrence Menz stated:

“About 30 days prior to the 4th of September, 1935, I rented the basement to a man named Frank Handley, the defendant in this case. I was paid five dollars a week for the basement; I saw whiskey in the basement; the defendant Frank Handley came to the house practically every day and took packages into and out of the basement.”

Lawrence Menz also stated they had fruits and vegetables in the basement, and that the outside door waá unlocked and any one could come and go into the basement at will. Further testifying, witness stated:

“I never asked anyone to go into tbe basement, in fact I never said anything about tbe basement as I bad rented it to Frank Handley.”

W. N. Farris and Roy Pool testified, in substance, that on Sunday prior to' Wednesday, September 4, 1935:

“We saw the defendant and bis son leaving, his home at El Reno; we drove east on Highway 66, and as we passed the Menz home, which sets about twoi blocks north of the highway, we saw the defendant’s car parked in the rear of the Menz home; we drove on east a ways and came back up even with the house and saw the defendant with a package in his hand.”

The state offered further testimony that the witnesses saw Frank Handley at the premises but never saw him go into the house: The officers further stated on September 4, 1935, they procured a search warrant and searched the Menz premises, and in the basement of the house found approximately eight gallons of com whisky, and eighty pints of bottle and bonded, or tax-paid, whisky. Frank Handley was not there, and they did not find anything in the search that belonged to him that they could identify.

The officers further stated on Sunday, prior to the search on Wednesday, they did not know or could not tell what the defendant had in his hand when he came out of the Menz house.

There was also some testimony introduced to show that Jake Kelley had whisky in the basement.

W. N. Farris further stated that since the arrest of the defendant, “I talked with Frank Handley several times, and the conversation was to the effect that a man had to do' something to make a living, and that they ought to get a break.” This statement was objected to by the defendant, objection overruled, and exception saved. The witness further stated:

“The reason why I believe the whisky belonged to Frank Handley is because people told us; the whisky belonged to Handley. I did not get any of this information from Handley, but I saw him coming out of the house with a case of fruit jars on Sunday morning before we made the raid; Handley came down the stairs out of the house with a package in his hands; I did not see him come out of the basement. I was less than two blocks away when I saw Handley come out of the house on Sunday before the raid was made the following Wednesday, September 4, 1985. The reason I think Handley kept the whisky at this place is this whisky came out of the cellar, and at the time we made the raid, and after what, somebody had told us, I saw Handley bring out a package in brown paper out of the house, and the fact we got whisky out of the basement when we made the search made me believe Handley owned it.”

The foregoing is all the testimony offered by the state. The defendant did not offer any evidence.

Seven errors have been assigned by the defendant. He discusses only two of the errors:

“1. That the verdict of the jury is contrary to both the law and the evidence.
“2. The trial court erred in finding and refusing to sustain the defendant’s demurrer to' the evidence offered by the state, at the close of the state’s evidence.”

The defendant in his argument treats both these errors together and insists that the evidence is wholly insufficient to sustain the verdict of the jury. The defendant further argues that the witness Lawrence Menz is an accomplice of his and that he had aided and assisted in keeping the whisky in the basement; that the testimony of Menz is not corroborated by any witness; and he further argues that in order that the conviction be sustained there must be some testimony connecting. Mm with the offense other than the witness Lawrence Menz.

We cannot agree with the contention of the defendant that Lawrence Menz is an accomplice of his in the possession and handling of the whisky found in the basement of the Menz home, but if the defendant’s contention as to Menz being an accomplice be true, this court has held that evidence corroborative of an accomplice need not directly connect the defendant with the commission of the crime; it is sufficient if it tends to connect him with its commission, and it is not necessary that the evidence tending to corroborate an accomplice be direct, but may be circumstantial only. Dwight Mitchell v. State, 59 Okla. Cr. 393, 60 Pac. (2d) 627.

As shown by the evidence in this case, Lawrence Menz had rented the basement to the defendant Handley, and Handley made trips back and forth regularly carrying packages to the basement and out of the basement. Menz knew the whisky was in the basement. The officers saw the defendant’s car parked at the Menz home and saw the defendant come out of the house and put a package in his car. This testimony furnished strong circumstantial evidence tending to connect the defendant with the ownership of the whisky that they found in the basement at the Menz home. The defendant did not deny that the whisky found in the basement of the Menz home was his. We hold that the renting of the basement of the house in which Lawrence Menz was living to the defendant Hand-ley and receiving the rent from him is not sufficient to make Menz an accomplice of the defendant in handling the whisky found in the basement of the Menz home.

In Killough v. State, 59 Okla. Cr. 429, 60 Pac. (2d) 808, the defendant Killough argued that Ralph and Roger Helm, who' testified for the state, were accomplices of bis, and that their testimony was not corroborated. The testimony showed that Ralph Helm had rented the defendant a place to place his still on the farm; that both Ralph and Roger Helm knew the still was there; they had collected rent from Killongh for the use of the land; yet this court held that Ralph and Roger Helm were not accomplices of the defendant in the crime charged against him. The evidence in this case shows that Lawrence Menz rented the basement to this defendant, and was paid for its use, and it is perfectly clear in this case that Menz knew for what purpose the defendant was renting the basement. The testimony borders very closely on the line that Menz was an accomplice. Menz knew the whisky was being stored in the basement, and that the defendant was going back and forth with packages in and out of the basement; he did not complain or object to the actions of the defendant, but he denies he had anything to do with the whisky.

The testimony in this case is not sufficient to show that Lawrence Menz is an accomplice of the defendant. His conduct, however, is not such as is expected of a good laAv-abiding citizen. If not aiding and abetting, he acquiesced in the defendant and his associates violating the law, and did not report the fact that the defendant was storing whisky in the basement of his home to the officers.

The evidence has been carefully examined, and the authorities cited in support of the contention of the defendant have been carefully studied, and the guilt of the defendant is not denied. The testimony is amply sufficient to sustain the judgment. The record fails to show any legal reason for the reversal of this case.

The judgment is affirmed.

EDWARDS, P. J., and DOYLE, J., concur.


text:
    OTTO SNEED v. STATE.
    No. A-9139.
    March 12, 1937.
    (65 Pac. [2d] 1245.)

      Geo. L. Sneed, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the state.
   DOYLE, J.

Plaintiff in error, Otto Sneed, and Tom Fuson were informed against for the defense of larceny of live stock. The information in substance charges that in Marshall county on or about the 29th day of May, 1935, the said defendants did feloniously take, steal, and carry away a cow, the personal property of one Lewis Townsley, with the felonious intent then and there on the part of them to deprive said Lewis Townsley of said livestock, and to convert the same to their own use and benefit.

Upon his separate trial the defendant, Otto Sneed, was found guilty as charged in the information and his punishment assessed at confinement in the state penitentiary for two years. Motion for new trial was filed and overruled. From the judgment entered in pursuance of the verdict November 13, 1935, he appeals.

The errors assigned and argued are that the evidence was not sufficient to sustain a conviction, and that the court erred in refusing to- give certain instructions requested by the defendant.

It appears from the evidence that in September, 1934, the government issued cows at Tishomingo- to Indian citizens and as they were given out each one was branded (U.S.), that one cow so branded was issued to Lewis Townsley, further described as a red motley faced cow, branded (U.S.) on the right side with a lazy (D) brand on the left side. Townsley took his cow to his home near Shay, where she was kept in Ed Long’s pasture. Some time in the spring of 1935, she strayed or was stolen. After searching and being unable to find her, he reported his loss to- A. G. Beames, constable, and asked him to help find the- cow. Beames, knowing that Ed Long had moved his herd of cattle from that community to the northern part of the county, called on Mr. Long and asked him if he had this cow in his herd. Long told Beames that he had the cow and promised to take care of her until springtime. Townsley was later seen and this agreement wasi made with Long, but neither Beames or Townsley ever went to Long’s pasture to see the cow, which was about twenty miles from Townsley’s- pasture at Shay.

Ed Long testified that this cow later got into the adjoining pasture of Ira Wilson, but the grass had come up by that time and he no longer had anything to do with her. She was thought to be a stray by Ira Wilson and was so reported by him to the neighbors.

Ira Wilson testified that he lived in Marshall county, that on May 29, Otto Sneed came to- his place looking for a stray cow, and Tom Fuson and Fred Nichols were in the car with him, that he took him to the pasture where he had twenty-five cows, and he walked up to- a stray cow that was there and said it was his. It was a motley faced red cow, branded U. S. on the right side and D. on the left hip, Sneed paid him $1.50 for keeping the cow, about noon that day Fred Nichols came with a truck and hauled the cow away.

The defense interposed was that the cow alleged to have been stolen was taken with the belief on the part of the defendant that the cow belonged to him, and that he had a right to take it.

The testimony of Guy Lindsay, Ed Stapleton, D. Lambert, and Tom Fuson on behalf of the defense tends to show that in September, 1934, the government issued cattle in Johnston county, Okla,., and a certain motley faced red cow, branded (U.S.) and another dim brand, was issued to one Guy Lindsay who loaded her into a trailer and had started to his home north of Mansville, when the cow broke through the trailer. It being just about dark on Saturday night, he obtained permission to put her in the lot of Ed Stapleton, who ran a filling station in Tishomingo. The following Monday when Lindsay returned he saw the defendant, Sneed, and traded the said cow to him for a small jersey cow, that the defendant with the assistance of others took to his home, only a short distance from the Stapleton lot and there kept her for a few days, then took her to some stalk fields down on the Washita river where his mother, brother, and himself had about one hundred head of cattle.

As a witness in his own behalf, Otto Sneed testified that the cow he traded for from Guy Lindsay was the cow he sold to' Tom Fuson. That he looked after the family herd in the stalk fields and saw the Lindsay cow;. there with the other cattle until some time in December, when said cow and four jersey yearlings were lost or stolen from the herd, that the yearlings were never received, that late in May with Tom Fuson he drove over to- Marshall county and picked up Fred Nichols and went on to the Wilson place. That they went ont in the pasture and when they got up within 60 yards from the herd he picked the cow, and Mr. Wilson said that was the stray, and he paid him for the pasturage and hired the Nichols boy and paid him $5 to haul the cow to Tishomingo, telling him he would meet him there at the station; that when Nichols arrived there Tom Fuson made an offer for the cow, which he accepted and he directed Nichols to take the cow on to Tom Fuson’s place, that Fuson paid for the cow there in the presence of several other persons, that about two months later when Mr. Beames and Mr. Wilson came to his place and said they wanted to talk to him he got in the car and they drove into Tishomingo-, there Mr. Beames asked him about the cow, he said, “I don’t know anything, about it now, whenever the time comes I will talk;” that he went and got this cow in good faith as the cow he traded for from Guy Lindsay; that he honestly believed that it was his cow and still so believes.

On cross-examination he stated that he might have said it would be cheaper to pay the boy for his cow than to go through court, that he has never been convicted of any offense.

The court gave the following instructions:

“ (II) You are further instructed that under the laws of the state of Oklahoma, larceny is defined as the taking of personal property accomplished by fraud or stealth and with the intent to deprive another thereof.
“And under the law any person in this state who shall steal any cow shall be punished by confinement in the state penitentiary for a term not less than two- years nor more than ten years. And in this connection you are told that the word ‘cow’ includes all animals of the bovine species.
“(Ill) Therefore you are instructed, gentlemen of the jury, that if you find beyond a reasonable doubt that the defendant, Otto Sneed, did take steal and carry away the cow described in the information filed herein knowing at the time that the same was not his own, or that he caused the same to be taken, then you will find the defendant guilty of the crime charged and assess his punishment at confinement in the state penitentiary not less than two years nor more than ten years.”

By these two instructions, the court attempted to cover the law of the case.

The court refused to give the following requested instruction presented by the defendant:

“You are further instructed that the felonious intent is one of the material allegations of the crime of larceny of live stock, as charged in the information, and the burden is on the state to prove that element to your satisfaction beyond a reasonable doubt.
“Refused. Exception allowed.”

In order to fully understand the issues presented, we will have to look to the language of the statute which defines the offense charged. It is as follows:

“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 be 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.” Penal Code, § 2267 (21 Okla. St. Ann. § 1716).

This statute is silent as to intent. The statute says, “any person in this state who shall steal any cow”' shall be guilty of a felony.

An examination of the authorities' will show that “larceny” and “stealing,” at common law, had the same meaning; and consequently stealing, as here defined, is the wrongful or fraudulent taking and removing of personal property, by trespass, with a felonious intent to deprive the owner thereof, and to' convert the same to his, the taker’s, own use. The crime of larceny, by our statutes, has been widened to a considerable extent. Our statute defines larceny as follows:

“Larceny is the taking of personal property, accomplished by fraud or stealth, and with intent to deprive another thereof.” Penal Code, § 2253 (21 Okla. St. Ann. § 1701).

Thus it appears the Legislature has modified the meaning of the word “larceny,” as used in the Penal Code, so that the taking of personal property accomplished by fraud or stealth, and with intent to deprive another thereof, is larceny, regardless of whether or not it was taken for the purpose of depriving the owner thereof or for the purpose of converting it to the use of the taker. Therefore while stealing and larceny at common law were synonymous terms, our statute has given to the word “larceny” a much broader meaning than it then had; while “steal” or “stealing” has not been defined by our statutes, and must be construed according to its common-law meaning. Crowell v. State, 6 Okla. Cr. 148, 117 Pac. 883; Hughes v. Territory, 8 Okla. 28, 56 Pac. 708.

The only difference between the crime of stealing a domestic animal under section 2267, supra, and larceny at the common law, is that this statute abolishes the degrees of the crime and makes the stealing of any of the animals named a felony, without regard to the amount of their value.

When these two sections are construed as above pointed out, they are in perfect harmony, and can be measured by correct legal rules. But if section 2267 only makes the stealing of the animals named therein grand larceny, as defined by our statutes (Penal Code, § 2256 [21 Okla. St. Ann. § 1704]), then the degrees of larceny cease to be measured by the value of the property stolen, and our statute on larceny would be inconsistent and wholly wanting in any fixed rule.

Section 2267, supra, creates a separate and distinct crime from section 2253, defining larceny. To support a conviction under section 2267, it is necessary to allege and prove the ownership of the animal stolen, and a felonious intent on the part of the taker to deprive the owner thereof and to convert the same to his, the taker’s, own use, which specific proof is not necessary to support a conviction under the general larceny statute. Section 2253, supra. Crowell v. State, supra; Bryan v. State, 11 Okla. Cr. 180, 144 Pac. 392; Underwood v. State, 23 Okla. Cr. 119, 212 Pac. 1010; Cope v. State, 23 Okla. Cr. 161, 213 Pac. 753.

From an application of a familiar principle that every person is presumed to intend to do that which he does do, and also to intend the natural consequences of his acts, juries naturally and usually do infer, from the acts entering into' the crime of larceny of live stock and the manner of their commission, the intent to deprive the owner of the property taken; but this is by no means a necessary inference, for the intent accompanying the acts may be entirely wanting, or in itself an innocent one, for instance, the property may be taken with an intent to return it, or be taken by mistake, or by some intent other than to deprive the owner thereof, in' which case the offense has not, of course, been committed.

The intent to steal does not follow the act of taking as a legal and conclusive presumption.

The rule in cases where property is taken under claim of right as laid down in 2 Bish. Cr. Law, par. 451, is that:

“In all cases where one in good faith takes another’s property under claim of title in himself, he is exempt from the charge of larceny, however puerile or mistaken the claim may in fact be. And the same is true where the taking is on behalf of another, believed to be the true owner. Still, if the claim is dishonest, — a mere pretense, —it will not protect the taker.”

Another well-organized rule is that where the taking is open, and there is no subsequent attempt to conceal the property and no' denial, but an avowal of the taking, a strong presumption arises that there was no felonious intent which must be repelled by clear and convincing evidence before a conviction is authorized.

While it is a rule approved by this court that where there is any evidence to support a conviction, or where the evidence is conflicting, this court will not review the record for the purpose of ascertaining or determining the weight or sufficiency of the same, and, ordinarily, the verdict approved by the trial court will be allowed to stand. A case of this character, however, is exceptional.

Upon a careful examination, our conclusion is that the evidence is insufficient to sustain the conviction.

It will be observed that instruction No. 2 submitted the issue of grand larceny, the court defining the same in the exact language of section 225B, supra, and the other instructions given omit one essential element of the crime of larceny of live stock, the felonious intent on the part of the taker to deprive the owner thereof and to convert the same to his, the taker’s, own use.

Upon the crime charged and the evidence introduced, it was the duty of the court to submit the case to the jury on the crime as defined by section 2267, and in connection therewith to give the requested instruction. In failing to so instruct, error prejudicial to the substantial rights of the defendant was committed.

It follows from what has been said that this cause was tried and submitted to the jury upon an erroneous theory of the law.

For the foregoing reasons, the judgment is reversed and the cause remanded to the trial court.

DAVENPORT, P. J., and BAREFOOT, J., concur.