text:
    CLAUDE CARTER et al. v. STATE.
    No. A-4086.
    Opinion Filed June 2, 1923.
    (215 Pac. 440.)
    (Syllabus.)
    1. Indictment and Information — Information not Duplicitous — Surplus Allegation that Female Under Influence of Liquor When Raped. Por information held to charge crime of rape in first degree on female under the age of fourteen years, and further held not to be duplicitous, see body of opinion.
    2. Trial — Election Between Acts — Rape. Held, under the facts in this case, the state should have been required to elect upon which act of sexual intercourse reliance was had for a conviction, upon motion of defendant' at the conclusion of the state’s evidence in chief.
    Appeal from District Court, Choctaw County; E. P. Lester, Judge.
    Claude Carter and another were convicted of rape in the second degree, and they appeal.
    Reversed and remanded.
    Warren, Warren, & Warren, for plaintiffs in error.
    George P. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   MATSON, P. J.

This is an appeal from a judgment of conviction for rape in the second degree rendered against the plaintiffs in error in the district court of Choctaw county on the 24th day of March, 1921, with punishment assessed against each at imprisonment in the state penitentiary for one year.

On the 14th day of February, 1921, the county attorney of Choctaw county filed an information in the district court of said county charging these plaintiffs in error, hereinafter referred to as defendants, with the crime of rape, the charging part of the information'being as follows:

“That Claude Carter and Burrill McFarland, in the county and state aforesaid, on the day and year aforesaid, did. unlawfully, willfully, wrongfully, knowingly, and feloniously have sexual intercourse with and carnally know and rape one Bernice Mays, a female not the wife of either of them, the said .Claude Carter and Burrill McFarland, and then and there a: female under the age of 13 years, the said Bernice Mays being then and there drunk from the effects of whisky administered' to her, the said Bernice Mays, by the said Claude Carter and Burrill McFarland, contrary to the form of the statutes, in such cases made and provided, and against the peace and dignity of the state.”

On the¡ 8th day of March, 1921, defendants filed a demurrer to said information, on the ground that said information was duplicitous, in that it charged these defendants with two separate offenses in one and the same count. The demurrer to the information was overruled, and proper exception taken.

On the 23d day of March, 1921, the cause was called for trial, a: jury duly impaneled and sworn, the case stated by the prosecuting attorney, and the first witness called to the stand, when counsel for defendants objected to the introduction of testimony, the grounds of which objection are not necessary to be stated.

After the conclusion of the state’s evidence counsel for defendants requested the trial court to require the county attorney to elect upon which act of sexual intercourse the state relied for a conviction, which said motion was overruled by the court, and proper exception reserved.

In view of the disposition made of this appeal it is only necessary to pass upon two of the propositions presented. First, whether or not the court committed error in overruling the demurrer to the information; second, did the court err in refusing to require the state to elect upon which act of intercourse it relied for a conviction? The other questions presented are such as are not supported by the record, or else would not be involved in a second trial of the case.

The demurrer to the information was! properly overruled. The information charges but one offense, to wit, statutory rape of a female under the age of 14 years, and the further allegation contained in the information, to wit, ‘‘‘the said Bernice Mays being then and there drunk from the effects of whisky administered to her, the said Bernice Mays, by the said Claude Carter and Burrill McFarland,” did not have the effect of charging a different offense or a different degree of rape. Under our statutory provisions rape upon a female under the age of 14 years, either with or without consent, is rape in the first degree, and any allegation of the conditions under which such a rape was effected is mere surplusage, provided the information in other respects, as in this case, fully charges the crime of rape upon a female under the age of 14 not the wife of the perpetrator.

The second proposition presented is fatal to an affirmance of this cause. The information charged these defendants jointly with having raped Bernice Mays, the prosecuting witness. The information did not state whether said offense was committed by an act of intercourse accomplished by Claude Carter, one of the defendants, or by an act of intercourse accomplished by Burrill McFarland, the other defendant. It was impossible to determine from the allegations of the information! whether or not more than one act of intercourse was accom- • plished by the defendants. The information, therefore, on its face disclosed no duplicity in charging more than one offense. It did, however, develop from the testimony of the prosecuting witness that the defendant Claude Carter first accomplished an act of sexual intercourse with her, and that the other defendant, Burrill McFarland, was not present on such occasion, and there: is no evidence that the said Burrill McFarland aided or abetted Claude Carter in such act, unless such act was the result of a conspiracy previously entered into between these defendants to each have sexual intercourse with the prosecuting witness; and the facts and circumstances in evidence do not disclose any such conspiracy. A second act of intercourse with the prosecuting witness was accomplished by the defendant Burrill McFarland at a time and place when the defendant Claude Carter was not present. After the evidence disclosed these separate acts of intercourse, one by each defendant, the trial court should have sustained the motion of the defendants to require the state to elect upon which act a conviction was relied upon. The two transactions constituted separate* and distinct offenses, and, while the defendants may have been equally guilty of each of the offenses, they were entitled to be tried under our statutes for only one of such offenses at a time. The failure, therefore, to require the state to elect upon which offense it relied for a conviction was reversible error in this case. Gracy v. State, 13 Okla. Cr. 643, 166 Pac. 442; Bishop’s Criminal Procedure, § 442; Montour v. State, 11 Okla. Cr. 376, 145 Pac. 811; Morris v. State, 9 Okla. Cr. 214, 131 Pac. 731; Cornell v. State, 104 Wis. 527, 90 N. W. 745; State v. Pruitt, 202 Mo. 49, 100 S. W. 431, 10 Ann. Cas. 654.

For reasons stated, the judgment of conviction is reversed, and the cause remanded to the district court of Choctaw county, with instructions to grant the defendants a new trial, and for further proceedings not inconsistent with this opinion.

DOYLE and BESSEY, JJ., concur.


source: Caselaw Access Project

author: BESSEY, J.

license: Public Domain

text:
    In re OPINION OF THE JUDGES. In re FRED GODFREY.
    No. A-4715.
    Opinion Filed June 6, 1923.
    (215 Pac. 640.)
   BESSEY, J.

According to the provisions of section 2784, Comp. Stat. 1921, it is made mandatory upon the trial judge when judgment of death is rendered to appoint a day upon which such judgment shall be executed, which day must not be less than 60 days nor more than 90 days from the date of the rendition of judgment. He must also direct the sheriff to deliver the defendant within 10 days from the date of the judgment to the warden of the state prison at McAlester, to be dealt with in accordance with the judgment and sentence. The record shows that the judgment fixed the date of- execution within the time provided by law, and that the warrant directing the sheriff to transmit the defendant to the penitentiary was in conformity with this statute.

Sections 2805 and 2808, Comp. Stat. 1921, provide that every defendant in a criminal caste, as a matter of right, may appeal from a judgment against him within six months from the date of the rendition of judgment. It will be seen, therefore, that this defendant’s time in which to appeal will not,expire until November 7, 1923, after the date set for the execution of the sentence of death. The record submitted shows that the defendant has given notice of his intention' to appeal from the judgment rendered, and that he has taken steps to perfect his appeal' to this court.

After the delivery by the sheriff of the defendant to the warden of the penitentiary pursuant to such judgment, the trial court has no authority to extend the time of execution, and this court has no jurisdiction and will acquire no jurisdiction to suspend sentence until the appeal has been filed in this court. It is the advisory opinion of this court that the only way to preserve to the defendant his right of appeal for the full period of six ¡months will be for the Governor of this state to suspend the execution of the judgment until after the expiration of the 6-month period. Section 2787, Comp. Stat. 1921. In re Ledbetter, 18 Okla. Cr. 366, 195 Pac. 151; In re Opinion of the Judges, 17 Okla. Cr. 369, 189 Pac. 198.

We have carefully examined the authenticated transcript of the record in this ease, including the testimony and other proceedings, and find that there was a proper observance of all the regularities and formalities of law essential to the rendition of a judgment involving the taking of human life, and that the trial, conviction, and sentence of death were all had and done in substantially the manner and form provided by the laws of this state.

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


author: DOYLE, J.

text:
    ED WARREN v. STATE.
    No. A-3926.
    Opinion Filed June 4, 1923.
    (215 Pac. 635.)
    (Syllabus.)
    1. Homicide — Evidence Supporting Conviction of Murdelr. In a prosecution for wife murder by poisoning, evidence held sufficient to support the verdict of conviction and assessing imprisonment for life as the punishment.
    2. Indictment and Information — Test of Sufficiency. The true test of the sufficiency of an indictment or information is not whether it might possibly have been made more certain, but whether) it alleges every element of the offense intended to be Charged and sufficiently apprises the defendant of what he must be prepared to meet.
    3. Appeal and Error — Discretion of Trial Court — Change of Venue. The granting of a change of venue) is under' the statute a matter resting within the sound discretion of the trial court, and this court will not reverse the judgment unless it clearly appears that ther© has been an abuse of such discretion.
    4. Venue — Denial of Change of Venue Held not Abuse of Discretion. It is not an abuse of discretion to deny a petition for á change of venue in a capital case, which was based on the alleged prejudice of the minds of the people of the county, caused by newspaper reports of the murder, such newspapers having a large circulation in the county, where the prima facie case made by the affidavits filed by defendant is fully answered and overcome by counter affidavits, and where the subsequent proceedings show that there was no difficulty in securing a fair and impartial jury. •,
    5. Appe.al and Error — Discretion of Trial Court — Continuance. An application for a continuance is addressed to the sound discretion of the trial court, and, unless it clearly appears that there is abuse of such discretion, this court will not reverse the judgment for refusal to grant a continuance.
    6. Jury — Challenge for Cause — Juror Held Unbiased. The trial court’s refusal to sustain a challenge to a juror for cause will not be disturbed, where it appears from the examination of such juror that he had not talked with any one who purported to know about the case of his own knowledge, but had read newspaper reports, and had no opinion other than that derived from reading newspapers and who stated that he could and would render a fair and impartial verdict upon the evidence.
    7. Evidence — Declaration of Decedent as Part of Res Gestae. In a prosecution for murder by poisoning, decedent declared in a conversation, an hour before her death, that the defendant gavei her a dose of medicine before leaving, about an, hour before. Held, that the declaration was admissible, as part of the res gestae.
    8. Same — “Re.s Gestae" Defined'. Res gestae are the circumstances, facts, and declarations which grow out of the main transaction, or are contemporaneous with it, and serve to illustrate its character, including acts, and words which are so closely connected therewith as to constitute a part of the transaction, and without a knowledge of which the main transaction might not be properly understood.
    Appeal from District Court, LeFlore County; E. F. Lester, Judge.
    Ed Warren was convicted of murder, and he appeals.
    Affirmed.

      Lunsford & Bulgin and Neal & Neal, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

Ed Warren, was convicted of the murder of his wife, and in pursuance of the verdict of a jury was sentenced to imprisonment in the penitentiary for life at hard labor. From the judgment he appeals.

Without going into a detailed statement of the testimony, the transcript shows that appellant and his wife, Levergie Warren, were married at Heavener in November, 1914. He was then about 30 years of age and her age was 16 years. She was the owner of about 200 acres of land near Heavener, including her allotment as a Choctaw citizen. It appears that there had been many quarrels between the two due to attentions which appellant bestowed upon certain lewd women in the town of Heavener. Appellant was the beneficiary of two insurance policies, amounting to $5,000, upon the life of his wife. It appears that his wife was in poor health for some time prior to her death. On the 15th day of July, 1920, appellant, his wife, and their two children left their home to visit his wife’s sister, Mrs. Stenson, who lived about 8 miles east of Heavener, in. LeFlore county. As they passed through Heavener, appellant stopped at a drug store and purchased six three-grain quinine capsules and six atropine tablets.

The next morning, appellant gave his wife one or two. of these capsules, and before leaving gave Mrs. Stenson a box containing four capsules, with directions to give his wife a capsule at 9 o ’clock and one every three hours until all were taken. Appellant left the Stenson place that morning about 8 o ’clock; about 40 minutes after he left • his wife complained of being dizzy and said she felt as though she was almost paralyzed; she then laid down on a bed.' At 9 o’clock Mrs. Stenson gave her one of the, capsules; shortly afterwards» she began to have convulsions and died within an hour. A few days after the burial, suspicion having been aroused of the cause of her death, the grave was opened and a post mortem examination was made and the vital organs were removed from the body. A chemical analysis of the contents of her stomach disclosed a sufficient amount of strychnine to cause death and an-analysis of the capsules left in the box, supposed to contain quinine, showed that each of them contained sufficient strychnine to kill a human being.

The proof on the part of the defense showed that appellant had for three or four years preceding the death of his wife, sustained illicit relations with a young woman at Heav-ener, and that his wife on different occasions had threatened to commit suicide unless her husband ceased his unlawful attentions to this woman.

A witness testified that, while he was working at the Warren house, he found a package of nux vomica and was going to bury it, and Mrs. Warren said, ‘ ‘ Give it to me, I will take care of it. Ed has a lot of hounds around here, and I am going to get rid of some of them if he don’t” and that she told witness to put it on top of a rafter.

As a witness in his own behalf, defendant testified that on his way to his wife’s sister he bought six capsules of quinine and six atropine tablets on the advice of her physician; that he gave his wife a dose that night, and the next morning at 6 o’clock he gave her another capsule, and that was all he ever gave her; that he told her sister, Mrs. Stenson, to give her another capsule at 9 o’clock; that his wife was jealous of his association with other women; and that was the cause of frequent family rackets.

Upon arraignment, appellant interposed a demurrer to the information. The court overruled the demurrer and allowed exception. This ruling is assigned as error.

The information, omitting formal parts and allegations of time and vpnue, charges:

“That is to say that he, the said Ed Warren, did then and there willfully, without authority of law, feloniously and with a premeditated design to effect the death of one Levergie Warren, give and administer and cause! to he given and administered to the said Levergie Warren a certain deadly poison, commonly called strychnine, which the said Levergie Warren then and there received at the hands of the said Ed Warren and by his procurement, and which she, the said Levergie Warren, then and there swallowed, and by reason of which she then and there died; he, the said Ed Warren, then and there well knowing said Strychnine to be a deadly poison, and intending then and there and thereby without authority of law, feloniously and with a premeditated design to effect the death of the said Levergie Warren, her the said Levergie Warren did kill and. murder, contrary to the form of the statutes, in such cases made and provided,- and against the peace and dignity of the state. ’ ’

It is argued that the information is so vague and uncertain as to the manner and means of administering the poison and as to the person by whom given, as to make it impossible for the defendant to prepare his defense, in that it alleges that the said Ed Warren did then and there give and administer (and cause to be given and administered) strychnine which the said Levergie Warren then and there received at the hands of Ed Warren and by his procurement, and that the information is insufficient to charge the crime of murder, because it is not alleged that deceased was induced by appellant to swallow! the strychnine, and that all the allegations in the information might be true, and still deceased might have come to her death by her own voluntary act.

Our Code provides:

“The indictment or information must be direct and certain as it regards:
“First. The party charged.
“Second. The offense charged.
“Third. The particular circumstances of the offense charged, when they are necessary to constitute a complete offense.” Comp. Stats. 1921, § 2556.

Our Code further 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.” Comp. Stats. 1921, § 2564.

We think the information in this case sufficient under the requirements of these sections of the Code.

The true test of the sufficiency of an information is not whether it might possibly have been made more certain, but whether it contains every element of the offense intended to be charged,, and sufficiently apprises the defendant of what he must be prepared to meet.

The particular circumstances of the offense are sufficiently set out in alleging that he did give and administer, and cause to be given and administered, a certain deadly poison, commonly called strychnine, he then well knowing said strychnine to be a deadly poison and intending then' and there and thereby without authority of law, feloniously and with a premeditated design, to effect the death of said deceased, and the phrase, “and caused to be given and administered” is mere re-dundance. If the capsule administered by the sister of the deceased by direction of appellant, said sister fully believing and relying on the statement of appellant that the same was quinine, caused the death, then the poison was administered to deceased by appellant, using deceased’s sister as the instrument by which the poison was administered.

In our opinion the information sufficiently charges the crime of murder, and the demurrer thereto was properly overruled.

The second assignment is “error of the court in refusing to grant a change of venue.” The application was supported by the affidavit of appellant and 36 residents of LeFlore county. The ground set up in the application was that the minds of the inhabitants! of LeFlore county were so prejudiced against the defendant that he cannot obtain a fair and impartial trial in said county; that at' the time that he was charged with the murder of his wife he was being prosecuted for larceny of livestock and had incurred the enmity of certain influential citizens of the town of Heavener; that, because of this charge, discussion derogatory of the defendant’s personal character had been indulged in in the vicinity of Heavener, and other towns in LeFlore county; that certain newspapers of the county, together with newspapers daily circulated throughout the county, carried Associated Press dispatches and circulated throughout the county the facts that the defendant had been charged with crime to such an extent that the defendant was in great danger of being lynched by an uprising of the citizenship ; that the minds of the people of the county became so inflamed that mob violence was emminent, and the sheriff of said county removed defendant from the county jail to the state penitentiary at McAIester for safekeeping.

It is also alleged that persons unfriendly to the defendant, relatives of his deceased wife, had been circulating petitions and collecting money in the county, to be used in the proseeution of the defendant; that said persons used every effort "to create sentiment and opinion prejudicial to the defendant.

The state resisting the application filed the affidavit of the county attorney, which, omitting formal parts, reads:

“That LeFlore county is comprised of territory aggregating 1,731 square miles,; and has a population of approximately fifty thousand (50,000) people; that if there is any prejudice in said county against said defendant, which the county attorney here specifically denies, said prejudice is not general throughout the county, and does not extend generally to the persons subject to jury service, but prevails only in the vicinity of Heavener, and within a radius of a very few miles at that place, and that the percentage of population of said county residing in the vicinity of Heavener, is very small, and that the number of persons affected by prejudice against said defendant subject to jury service is very small, if any at all; that a fair and impartial jury for the trial of this cause can be conveniently obtained in LeFlore county, and of all this- proof is here offered.
“D. 0. McCurtain, County Attorney.”

The state filed more than 50 affidavits of citizens of the county, each affiant stating that he did not know of any prejudice existing in the minds of the people living in his vicinity against Ed Warren, and that jurors could be procured in his community, who are in no way prejudiced! against the defendant.

Counsel for appellant moved to strike from the files all ■controverting affidavits filed on the part of the state, on the ground that the same are not controverting affidavits within the meaning of the statute, which motion was overruled and exception allowed.

Thereupon the court permitted appellant to call certain witnesses in support of his application, and, after hearing the proof offered in support of said application, and proof offered by the county attorney, the court denied the application and allowed an exception.

Counsel for appellant contends that the court erred' in overruling the aforesaid motion and in refusing to grant a' change of venue.

The statute provides that a change of venue may be had in any criminal cause pending in the district court on the ap- ' plication of the defendant by petition setting forth the facts verified by affidavit, and the truth of the allegations in such petition to be supported by the affidavits of at least three credible persons who reside in said county.

It further provides that:

“The county attorney may introduce counter'affidavits to show that the persons making affidavits in support of the application in open court in regard to the truth of said applica-necessary, and may examine the witnesses in support of said application in open court in regard to the truth of said application ; and if it be made to appear by the affidavits and examination of witnesses that a fair and impartial trial cannot be had in the county, a' change shall be granted and the order made by the court.” Comp. Stats. 1921, § 2628.

The affidavits filed by the state in denial of the allegations of the application tended to show that there was no such state of feeling generally prevailing throughout the county as would prevent the defendant from having a fair and impartial trial therein, or would' even make it difficult to obtain an impartial jury for the trial.

It has been uniformly held by this court that the granting of a change of venue is¡ under the statute a matter resting within the sound discretion of the trial court, and, unless it clearly appears that there has been an abuse of such discretion, this court will not reverse the judgment for the failure of the trial court to grant a change of venue. Turner v. State, 4 Okla. Cr. 164, 111 Pac. 988; Starr v. State, 5 Okla. Cr. 440, 115 Pac. 356; Watson v. State, 9 Okla. Cr. 1, 130 Pac. 816; Tegeler v. State, 9 Okla. Cr. 138, 130 Pac. 1164; Gentry v. State, 11 Okla. Cr. 355, 146 Pac. 719; Maddox v. State, 12 Okla. Cr. 462, 158 Pac. 883; Smith v. State, 14 Okla. Cr. 348, 171 Pac. 341; Browder v. State, 16 Okla. Cr. 43, 180 Pac. 571; Emert v. State, 17 Okla. Cr. 406, 189 Pac. 195.

In this ease the subsequent proceedings show that there was no difficulty in securing a jury and that the jury obtained was an absolutely fair and impartial jury.

Considering all the facts and circumstances disclosed by the evidence we cannot say that the court erred in refusing to grant the change of venue.

The next error assigned is the overruling of the motion by defendant for a continuance. When the case was called for trial the defendant filed an application for continuance on the ground that counsel for defendant had been so occupied with other important cases pending in the district court of Le Flore county to such an extent that the time of both law firms was fully engaged from the opening of the term, and that counsel did not have sufficient time and opportunity to prepare the ease for trial.

A' defendant, as a' general rule, should not be 'compelled to go to trial until he has had a reasonable time to prepare his case for trial; but in this case the alleged offense was committed on July 16, 1921, the defendant was arrested and had or waived a preliminary examination, the information was filed in the district court August 2, 1921, and on the same day defendant was arraigned. On August 4th, he entered his plea of not guilty. Thereupon the court set the ease for trial on August 16th, and there was no objection made to this setting of the case.

The question, of granting or refusing a continuance is ordinarily discretionary with the trial court, and we fail to find anything in the record that would warrant this court in holding that there was any abuse of the discretion committed by the trial judge in this matter.

The fourth error assigned is the overruling of the challenge on the part of the defendant to the juror Derryberry, who upon his voir dire stated that he had heard nothing purporting to be facts except newspaper reports; he also stated • that he did not have any fixed opinion as to the guilt or innocence of the defendant, nor did he have any bias or prejudice against the defendant, and knew nothing to prevent him from rendering a fair and impartial verdict.

There appears no good reason for not adhering to the rule approved in Gentry v. State, 11 Okla. Cr. 355, 146 Pac. 719. The question presented is so thoroughly discussed in the opinion in that case that we can add nothing to what was there said. The challenge was! properly overruled.

The remaining assignment of error is based on rulings of the court in admitting, over the objection of the defendant, certain parts of the testimony of Mrs. Nettie Stenson and Mrs. Lee Taylor. Mr. Stenson testified:

“When the clock struck 9 I said, ‘Vergie, it is medicine time/ and I walked over and got the medicine and gave it to her. She said, ‘You gave my medicine too soon.’ I said, ‘Ed. said he gave you a dose, at 6 and it comes every three hours/ and she said, ‘Yes; but he gave me a dose just before he started.’ ”

Mrs. Taylor testified:

“The clock struck 9 just as she laid down on the bed, and she said, ‘Nettie, it is my medicine time,’ and Nettie came on in and gave her the medicine and after Nettie gave her the medicine she said, ‘Nettie, you gave me the medicine too soon.’ Nettie said, ‘No; I reckon not it is 9 o’clock, and Ed gave you a dose at 6 and said for me) to give you a dose at 9 and every three hours’ and she said, ‘Surely not, he gave me a dose just before he started.’ ”

It is argued that the trial court committed prejudicial error in permitting these witnesses to testify to declarations made by deceased as to what- the defendant had done previous to that time, and that deceased’s statement to the effect that the defendant gave her a dose of medicine when leaving about an hour before, was a mere narrative of a past event and purely hearsay, and was not admissible under any exception to the general rule, citing Field v. State, 57 Miss. 474, 34 Am. Rep. 476.

The general rule which excludes hearsay evidence is' subject to many well-recognized modifications and exceptions, one of which is that where evidence of a declaration is admissible, a person present may state what he heard said. In many cases testimony of this character has been admitted, as it was; in this ease, on the theory that it is res gestae.

In Commonwealth v. McPike, 3 Cush. (Mass.) 181, 50 Am. Dec. 727, the defendant was charged with killing his wife. It appeared that the deceased ran upstairs from her own room in the night crying, “Murder!” and bleeding. Another wo-, man, into whose room she was! admitted, went at her request for a physician. A third person who heard her crying went for the watchman, and on his return proceeded to the room where she was. He found her on the floor bleeding profusely. She said the defendant had stabbed her. The defendant’s counsel objected to the admission of this declaration in evidence. The objection was overruled. The Supreme Court of Massachusetts held that the evidence was properly admitted. It was said that the declaration was “of the nature of res gestae” and that the time when it was made was so recent after the injury was inflicted as to justify receiving it upon that ground.

Travelers’ Insurance Co. v. Mosley, 8 Wall. 397, 19 L. Ed. 437, was an action upon a policy of insurance. The question was as to whether the deceased, Mosley, came to his death by an accident inflicting personal injury, or whether he died of disease. To show that his death was caused by an injury received in consequence of an accident, his wife and son were called and testified that he had left his bed in the night and that when he came back he said he had fallen downstairs and complained of being hurt. He died in a short time thereafter, and his death was believed to be the result of the injury he received when falling. Upon an extended review of the authorities, the Supreme Court of the United States held that, although the statements of Mosley were not admissible in evidence as dying declarations, yet they were properly receivable as a part of the res gestae. Mr. Justice Swayne, in the opinion cited, Com. v. McPike, supra, with' approval and after referring to other eases, said:

“In the complexity of human affairs, what is done and what is Said are often so related that neither can be detached without leaving the residue fragmentary and distorted. There may be fraud and falsehood as to both; but there is no ground of objection to one that does not exist equally as to the other. To reject the verbal fact would not unfrequently have the same ■effect as to strike out the controlling member from a sentence, or the controlling sentence from its context. * * * Where sickness or affection is' the subject of inquiry, the sickness or affection is the principal fact. The res gestae are the declarations tending to show the reality of its existence, and its extent and character. The tendency of recent adjudications is to extend rather than to narrow the scope of the doctrine. Rightly guarded in its practical application, there is no principle in the law of evidence more safe in its results. There is none which rests on a more solid basis of reason and authority. We think it was properly applied in the court below. In the ordinary concerns of life, no one would doubt the truth of these declarations, or hesitate to regard them, uncontradicted, as conclusive. Their probative force would not be questioned. Unlike much other evidence, equally cogent for all the purposes of moral conviction, they have the sanction of law as well as of reason. The want of this concurrence in the law is often deeply to be regretted. The weight of this reflection, in reference to the case under consideration, is increased by the fact, that what was said could not be received as ‘dying declarations,’ although the person who made them was dead, ,and hence could not be called as a witness.”

See, also, State v. Wilson, 157 Iowa, 713, 141 N. W. 344; State v. Alton, 105 Minn. 410, 117 N. W. 619, 15 Ann. Cas. 806; Johnson v. State, 8 Wyo. 494, 58 Pac. 762; State v. Martin, 124 Mo. 529, 28 S. W. 12; Lewis v. State, 29 Tex. App. 201, 15 S. W. 642, 25 Am. St. Rep. 720.

We are satisfied that the testimony of these witnesses, including the statement accredited to deceased that the defendant gave her a dose of medicine just before leaving, was properly admitted as a part of the res gestae.

Where the inquiry is into the nature and character of a certain transaction, not only what was done, says Mr. Roscoe, but also wh(at was said by those present during the continuance of the transaction, is admissible for the purpose of illustrating its peculiar character and circumstances. Roscoe, Ev. 25.

Res gestae are the circumstances, facts, and declarations which grow out of the main transaction or are contemporaneous with it, and serve to illustrate its character, including acts and words which are so closely connected therewith as to constitute a part of the transaction, and without a knowledge of which the main transaction might not be properly understood.

It may be well for us to say here that we are inclined to think that the statement in question was also admissible under the familiar rule that all parts of a conversation bearing on the subject in controversy must be taken together.

Upon the whole case, it appears to us that the defendant had !a fair trial, and that the ends of justice, under the law, were no more than satisfied by the judgment of conviction appealed from. The judgment of the district court of Le Flore county herein is therefore affirmed.

MATSON, P. J., and BESSEY, J., concur.


text:
    In re OPINION OF THE JUDGES. In re JACK POPE.
    No. A-4704.
    Opinion Filed June 9, 1923.
    (215 Pac. 966.)
    In the matter of the request of the Governor for an opinion of the Judges of the Criminal Court of Appeals on the conviction and sentence to death of Jack Pope for the crime of murder.
    Opinion rendered.
   Opinion of the judges rendered in response to the Governor on the conviction and sentence to death of Jack Pope. Honorable J. C. Walton, Governor of the State of Oklahoma — Sir:

In response to your official communication of recent date presenting for consideration of the judges of this court the record of conviction of Jack Pope, who was, on May 10, 1923, by the judgment of the district court of McCurtain county, sentenced to suffer death by electrocution on July 13, 1923, the following opinion is respectfully submitted:

The record transmitted with your letter is a full and complete ease-made of all the proceedings leading up to said conviction and shows the following: That on the 4th day of May, 1923, the said Jack Pope was accorded a preliminary examination before F. C. Harkey, a justice of the peace in and for White township, McCurtain county, Okla.; that at the conclusion of said preliminary hearing the defendant was held to answer to .the crime of murder to the district court of Me-Curtain county without bail; that thereafter, and on the said 4th day of May, 1923, the transcript of the proceedings had in said .justice court was filed in the district court of McCurtain county, and that thereafter, and on said day, the county attorney of McCurtain county! filed in the district court of said county an information charging the said Jack Pope with the murder of Lydia B. Pope on or about the 27th day of April, 1923. An examination of the information thus filed discloses that it sufficiently charges' the defendant Jack' Pope with the crime of murder. Thereafter on the 5th day of May, 1923, the defendant Jack Pope was duly arraigned in open court; that before arraignment defendant was informed by the court that it was his right to have counsel to represent him; that defendant informed the court that he did not desire counsel to represent him. Thereupon defendant was duly arraigned, said his true name was Jack Pope, and, after being informed by the court that he had 24 hours’ time in which to plead, the defendant waived time in which to plead and pleaded guilty to murder as charged in the information, and the court then fixed Wednesday, May 9, 1923, as the time to render judgment and pass sentence on the defendant;. that thereafter on the 9th day of May, 1923, the court continued said cause for judgment and sentence to, the 10th day of May, 1923; that thereafter on the 10th day of May, 1923, the court called said cause for judgment and sentence on, the plea of guilty, the said defendant being present in open court; that before judgment was rendered and sentence pronounced on said plea the trial court heard the testimony of several witnesses, including the confession by the defendant.

It is not necessary to enter into the revolting details of defendant’s confession, as you will, no doubt, thoroughly acquaint yourself with the facts and circumstances surrounding this murder. Suffice it to say that the defendant confessed that he planned and assisted in the murder; of his wife, Lydia B. Pope, for the purpose of procuring $2,000 insurance on her life, which said insurance was made payable to this defendant as beneficiary. In accomplishing his design defendant solicited and procured the aid of his codefendant, Aaron Harvey whose record of conviction was also submitted by you, and also the aid of his son John Pope.

This' murder occurred at a farmhouse near the town of Haworth, at the home of Tom Hansell, where the wife of defendant was living separate and apart from him. Defendant and his codefendant, Aaron (Red) Harvey, did all the shooting, while defendant’s son John Pope remained about 250 yards from the house and held their horses while the killing took' place. Every person who was sleeping in the house at the time was killed. The persons killed besides Mrs. Lydia B. Pope were Tom Hansell, Mrs. Tom Hansell, Aubrey Hansell, four year old son of Mr. and Mrs. Hansell, and Hubert Pope, infant son of defendant and deceased, Lydia B. Pope.

In giving an advisory opinion to the Governor' as provided in section 2786, Compiled Statutes 1921, the questions involved are: Has there been; an, observance of tall the formalities of law essential to the taking of human life? Has the trial, conviction, and sentence of death been in accordance with the law of the land?

The answer to these questions under the record in this ease must be in the affirmative. We find that this was a prosecution by information in the district court of McCurtain county; that such a prosecution is authorized by the Constitution and statutes of this state in felony cases, after a preliminary examination is had or waived; that in this instance the defendant Jack Pope was accorded a preliminary examination and was’ regularly held to answer said charge in the district court of McCurtain county; that the transcript of the proceedings of the' preliminary examination was filed in said district court before the county attorney filed his information in said court charging this defendant with the crime of murder; that the defendant was thereafter brought into open court and duly arraigned on said charge, and upon said arraignment was notified of his right to counsel, and that in other respects the arraignment conformed to the statutory provisions; that on said arraignment defendant waived the right to counsel, which he had a right to do (Baker v. State, 9 Okla. Cr. 62, 130 Pac. 820), and further waived time in which to plead and voluntarily entered 'a plea of guilty to the said crime charged against him; that thereupon the court fixed a day some four days subsequent as the date to pronounce sentence and render judgment on the plea; and that thereafter, on the date fixed, the court passed the cause to the next day before sentence was pronounced and judgment rendered on the plea. It appears further that before pronouncing sentence and rendering judgment the trial court heard the testimony of several witnesses, including the voluntary confession of guilt made by the defendant in open court.

That upon, a plea of guilty to the crime of murder the trial court had jurisdiction to assess the death penalty without the intervention' of a jury is the holding of this court in Re Opinion of the Judges, 18 Okla. Cr. 598, 197 Pac. 546; also in Re Opinion of the Judges, 6 Okla. Cr. 18, 115 Pac. 1028, in which opinions the statute so authorizing was held to be a constitutional and valid enactment.

In conclusion, therefore, after reviewing the entire record before us, we are of the opinion that the necessary legal steps and proceedings were taken in this case essential to the taking of human life under a' charge of murder; that the defendant was accorded the benefit of all constitutional or statutory rights not specifically waived by him; and that his conviction and sentence of death has been in accordance with the law of the land.

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


text:
    In re OPINION OF THE JUDGES. In re AARON (Red) HARVEY.
    No. A-4703.
    Opinion Filed June 9, 1923.
    (215 Pac. 967.)
    In the matter of the request of the Governor for an opinion of the Judges of the Criminal Court of Appeals on the conviction and sentence to death of Aaron (Red) Harvey for the crime of murder.
    Opinion rendered.
   Opinion of the judges rendered in response to the Governor on the conviction and sentence to death of Aaron (Red) Harvey.

Honorable J. C. Walton, Governor of the State of Oklahoma— Sir:

In response to your official communication of recent date presenting for consideration of the judges of this court the record of conviction of Aaron (Red) Harvey, who was, on ■May 10, 1923, by the judgment of the district court of Me-Curtain county, sentenced to suffer death by electrocution on July 13, 1923, for the murder of one Lydia B. Pope, alleged to have occurred in McOurtain county on or about the 27th day of April, 1923, you are informed that this is a companion case to that of Jack Pope, an advisory opinion on which conviction and sentence is herewith submitted to you.

The steps and proceedings leading up to the conviction of Aaron (Red) Harvey were practically identical with those leading up to the conviction of Jack Pope, and the opinion rendered by the judges to you; relative to the conviction and sentence of Jack Pope is equally applicable tO' the conviction and sentence of Harvey. We deem it unnecessary, therefore, to restate our conclusions as to the conviction of Harvey in a separate opinion, and respectfully request that you will please consider the opinion rendered on the conviction and sentence of Jack Pope as applicable also to the conviction and sentence of Aaron (Red) Harvey.

For the reason stated in the Pope opinion, which accompanies this communication, the judges of this court conclude that the proceedings taken against Harvey were in every respect regular, and that all necessary legal steps were taken essential to the taking of human life under a charge of murder, and that his conviction and sentence of death has been in accordance with the law of the land.

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


author: PER CURIAM.

text:
    FLOYD MILLER v. STATE.
    No. A-4541.
    Opinion Filed June 9, 1923.
    (215 Pac. 1118.)
    Appeal from County Court, Oklahoma County; C. C. Christenson, Judge.
    Floyd Miller was convicted of maintaining a liquor nuisance, and he appeals.
    Dismissed on motion of appellant.
    E. C. Patton, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

Plaintiff in error, Floyd Miller, convicted in the county court of Oklahoma county on an information charging the maintaining of a liquor nuisance, was by the court sentenced to be confined in the county jail for six months and to pay a’ fine of $500 and the costs. From the judgment rendered on the 15th day of September, 1922, an appeal was perfected, by filing in' this court a petition in error with case-made. The plaintiff in error, by his counsel of record, has filed a motion to dismiss his said appeal. The motion to dismiss is sustained, and the cause dismissed, and remanded to the county court of Oklahoma county. Mandate forthwith.


author: MATSON, P. J.

text:
    DAVID CARROLL v. STATE.
    No. A-3655.
    Opinion Filed June 11, 1923.
    (215 Pac. 797.)
    (Syllabus.)
    1 Indictment and Information — Amendment Changing Year Offense Committed Held not Prejudicial. The original information charged the murder to have been committed on the 6th day of March, 1918. After the trial had commenced the court permitted the county attorney to amend the information by changing the year 1918 to 1919. Held, the amendment as to time was not of the essence of the offense, and the amendment in no way changed the issues to the prejudice of the defendant.
    2. Indictment and Information — In Information for Murder Permitting Change in IGiven Name of Deceased Held not Prejudicial. After the trial had commenced the county attorney was permitted to amend th© information by changing the given name of the deceased from “Charley” to “Charles.” Held, such amendment did not operate to the prejudice of the defendant. Under an allegation the given name as “Charley,” proof of "Charles” is not a fatal variance, as “Charley" is a familiar nickname or substitute for “Charles,” and is so understood generally.
    3. Homicide — Preliminary Inquiry as to Contents of Letter, a Copy of Which Was Excluded, Held not Prejudicial. Where the state endeavored to prove a threat by the defendant against the deceased included in a letter alleged to have been written by the defendant and received by the deceased, and, upon the failure of the state to produce the original letter or to identify the letter as the act of the defendant, although some proof was made of the loss of the original letter, the trial court excluded an alleged copy of the letter on objection by defendant’s counsel, there was no ruling adverse to the defendant, and no evidence was admitted of which he can complain in this court.
    4. Witnesses — Cross-Examination as to Reputation of Accused as Law-Abiding Citizen — Acts of Violence Prior to Crime. On cross-examination of witnesses as to defendant’s character and reputation as a peaceable and law-abiding citizen, it is proper to inquire as to knowledge of alleged acts of violence committed by the defendant at various times prior to the time of the killing on others than the deceased.
    5. Appeal and Error — Errors in Cross-Examination not Objected or Excepted to, and Answers Favorable to Defendant. Where it is contended that certain alleged cross-examination was improper, and the record discloses that answers to such alleged improper questions were favorable to the defendant, and that no objections were interposed or exceptions taken to such line of cross-examination, there is nothing for this court to review.
    6. Appeal and Error — Harmless Error — Incompetent Rebuttal Testimony. A judgment of conviction will not be reversed solely because of the admission of incompetent testimony in rebuttal unless! it appears to this court, after an examination of the entire record, that the admission of such testimony has probably resulted in a miscarriage of justice or deprived the defendant of some constitutional or statutory right, to his prejudice.

      7. Appeal and Error — Scope of Review Where no Brief nor Argument. Assignments of error not supported in the brief by the citation of authority and argument, and presenting no> fundamental error, will not be reviewed.
    S. Homicide — Evidence Sustaining Conviction of Manslaughter in First Degree. Evidence examined, and held sufficient to sustain the verdict and judgment.
    Appeal from District Court, Craig County; A. C. Brewster, Judge.
    David Carroll was convicted of manslaughter in the first degree, and he appeals.
    Affirmed.
    William P. Thompson, for plaintiff in error.
    George F. Short, Atty. Gen., for the State.
   MATSON, P. J.

David Carroll, plaintiff in error, was on the 14th day of June, 1919, in the district court of Craig county, Okla., adjudged guilty of the crime of manslaughter in the first degree, and punishment assessed at imprisonment in the state penitentiary for a period of 10 years. The information charged the murder of one Charley Hayden, alleged to have occurred on the 6th day of March, 1919. Petition in error with case-made attalched was filed in this court on November 15, 1919. In due course of time the cause was submitted, and is now before this court for review upon its merits.

The assignments of error will be considered in the order presented in the trial court.

After the defendant had pleaded not guilty, and had announced ready for trial, without interposing a demurrer to the information, the jury was impaneled, and the state placed its first witness' upon the stand; counsel for the defendant then objected to the introduction of any evidence against the defendant upon the grounds that the trial court had no jurisdiction of the subject-matter of the offense, and that the information did not state facts sufficient to constitute a public offense. Thereupon the following proceedings were had:

"By Mr. Clark: The county attorney desires to amend.
"By the Court: The court permits the county attorney to amend to make if 1919, it clearly appearing that its intention couldn’t be any other way. You didn’t file any demurrer up to now and the' court doesn’t see that the circumstances or interest of the defendants will be hurt.
"By Mr. Davis: The defendants and each of them object and except to the holding, finding, and remarks of the court, and request the court to be heard on the motion at this point.
"By the Court: I will hear you, but that’s the law.
"By Mr. Davis: The defendant objects and excepts to the ruling of the court, and also to the refusal of the court to hear it any further.
"By the Court: I am not refusing to hear you any further, and don’t let any such thing as that go in the record; if you want to be heard I will hear you for two hours.
"By Mr. Davis: The defendants and each of them object 'and except to the court permitting the county attorney to amend this information as to the date, changing it from 1918 to 1919.
"By the Court: Exception allowed.
"By Mr. Davis: The defendants and each of them object to the amendment as made by the county attorney, changing the date from 1918 to 1919.
"By the Court: Overruled.
"By Mr. Davis: The defendants and each of them except. The defendants and each of them, being in jeopardy, object to being further tried for the reason that no copy of the information or list of witnesses have been served upon them on the present information.
“By the Court: Overruled.
“By Mr. Davis: The defendants and each of them except. ’ ’

As we understand this assignment from the brief of defendant’s counsel, the information as originally filed charged the crime to have been committed on the 6th day of March, 1918. The court permitted the information to be amended by changing the year 1918 to 1919. This amendment was immaterial, as time was not of the essence of the offense, and the amendment in no way changed the issues to the prejudice of defendant. The allegation in the original information was sufficient as to time, and no amendment was required to permit of proof that the crime was actually committed on the 6th day of March, 1919.

In this connection it is also contended that the trial court erred in permitting an additional amendment to be made to the original information after the trial had commenced by changing the given name of the deceased from “Charley” to “Charles.” This amendment was permitted after the widow of the deceased, Hayden, had testified that he always signed his name “Charles.” The amendment was equally as unnecessary as the change of dates. Under the allegation of the given name “Charley” proof of “Charles” would not have been a' fatal variance. The names are identical, and so understood generally, “Charley” or “Charlie” being merely colloquial expressions for “Charles.” Webster says “Charley” or “Charlie” are familiar nicknames or substitutes for Charles. Amendments of the character of these are clearly admissible “after plea on order of the court” under section 2512, Compiled Statutes 1921. As the amendments were not such as in .any way changed the proof either as to date or as to the name of the deceased, there was no cause for delay of the trial, and no error was committed in ordering the trial to proceed immediately after the making of these separate amendments.

The next errors assigned relate to the admission of alleged incompetent and immaterial testimony. These will be considered in the order presented in the brief of defendant’s counsel. Under this assignment counsel have also grouped matters more properly referable to misconduct of counsel and improper cross-examination. All occurrences during the progress of the trial properly objected and excepted to and called to the trial court’s attention in the motion for a new trial will be considered on appeal. We deem the arrangement of the errors assigned! a matter of minor importance; the gist of the inquiry Ijere is:

“Were the rulings of the trial court erroneous? If so, was defendant prejudicially affected thereby?’’

The action of the trial court first complained of under this assignment is that counsel for the state was permitted to inquire about the contents of a certain letter supposed to have been written by defendant “without having introduced such letter or identified it or connected it with the defendant. ’ ’ The court’s attention is not specifically called to all the pages of the record for support of this contention. After a careful examination we find the following proceedings applicable to this assignment:

In the direct examination of Sena Hayden, widow of the deceased, occurs the following:

“At this time I; desire to submit this to opposing counsel and offer it. Q. Did you receive this letter, Mrs. Hayden, or did Mr. Hayden receive it while hé was still alive? A. This is a copy of the one he received. Q. This is a copy? A. Yes, sir. Q. Do you know where the original is? A1. I left it with Mr. Roberts. Q. Examiné that and see if that’s not the original? A. I am not sure. I think that’s a copy, I copied it off. Q. You copied the letter off that he received? A. Yes, sir. Q. Did you copy it exactly? A. Yes, sir; spelling of the words and all. Q. You turned' the original over to Mr. Roberts? A. Yes, sir.”

No further effort was made by the state, in presenting the case in chief, to identify this letter as the act of defendant, or to prove the loss of the original. When the defendant was a witness the alleged copy of the letter was presented to him, and he denied any knowledge of it. Thereafter, in rebuttal, the state introduced Mr. L. L. Roberts, attorney prosecuting the case, as a witness to prove the loss of the original letter, and his testimony in that regard was as follows:

“Mr. Roberts, having been called as a witness for and on behalf of the state, and having been heretofore duly sworn, was examined by Mr. Clark and testified as follows, to wit:
“Q. State your name? A. L. L. Roberts. Q. Where do you live? A. Vinita. Q. What’s your business or profession? A. I am an attorney. Q. Are you attorney in the ease of State v. David and T'hara Carroll? A. I am. Q. Was a letter turned over to you by Mrs. Hayden in this case? A. Yes, sir. Q. Have you that copy with you? A. I have one that she says is a copy.
“By Mr. Davis: The defendants and each of them objects to this evidence. The state brought this out and it’s not proper.
“By the Court: I think they have a right to show what became of that letter. (Overruled.)
“By Mr. Davis: The defendants and each of them except.
“By Mr. Clark: Q. What became of that original letter? A. I placed it in my drawer and later I gave it to Mr. Head-rick, and he came back and turned the letter over to me, and I couldn’t find it this morning. Q. You haven’t that letter now ? A. No, sir. Q. Haven’t been able to get it? A. No, sir. Q. You have made a diligent search for it? A. Yes, sir.
“That’s all.
“By Mr. Thompson: That’s all.
“By Mr. Davis: The defendants and each of them move to strike the testimony of the witness Roberts for the reason it is not rebuttal on any fact brought out on the part of the defendant, and for the further reason this letter was inquired of and by them at first, and therefore is incompetent, and Mrs. Hayden testified about it, and it is not competent, and we object as being incompetent, irrelevant, and immaterial and not ' proper rebuttal.
“By the Court: At this time I will overrule the objection.
“By Mr. Davis: The defendants and each of them except.”

Thereafter the state introduced Mrs. Sena Hayden as a witness, and her testimony regarding this letter is as follows:

“Q. Is this a true and correct copy of the letter that you received through the mail and that you left with me ?
“By Mr. Thompson: Objection. Incompetent, irrelevant, and immaterial, and not proper rebuttal. As I understand the testimony before, she said she didn’t know who wrote that letter. For the further reason that the original hasn’t been identified, no witness swore to who wrote it, and knows nothing about it.
“By the Court: The letter has never been identified, and couldn’t be competent evidence.
“By Mr. Roberts: That’s all.
“By Mr. Thompson: That’s all.”

From the foregoing and other parts of the record it is apparent that the state endeavored to prove a threat by the defendant against the deceased which was included in a letter alleged to have been written by the defendant and received by the deceased. Upon the failure of the state to produce the original letter or to identify the letter as the act of the defendant, although some proof was made of the loss of the original letter, the court very properly excluded this testimony on objection by defendant’s counsel. In this respect there was no •ruling adverse to the defendant, and no evidence was admitted of which he can complain in this court. Further, it is contended that certain improper questions were permitted to be asked of some of the defendant’s character witnesses. The defendant placed his reputation as a peaceable, law-abiding citizen in issue, and introduced numerous witnesses who swore that they knew defendant’s reputation therefor, and that it was good. Some of these witnesses were asked if they had heard of certain alleged acts of violence committed by the defendant at various times prior to the time of this killing on other than the deceased. The record discloses that these questions were asked without objection by defendant’s counsel, that the answers were all in the negative, and for such reason nothing occurred in this respect during the progress of the trial that this court can review. In this instance, however, we deem the questions asked proper on cross-examination of character witnesses. Stouse et al. v. State, 6 Okla. Cr. 415, 119 Pac. 271; Pope v. State, 15 Okla. Cr. 162, 175 Pac. 727; Jones v. State, 17 Okla. Cr. 561, 190 Pac. 887.

Attention is next called to certain alleged improper cross-examination of the defendant. In regard to these matters the brief contains the following:

• “And that he persisted in asking on cross-examination the plaintiff in error, himself, about whether he hadn’t had trouble with Oil Hill, one of the witnesses for the state, and if he didn’t tell Mr. Palmer that he had a gun and knife for the purpose of skinning a duck, but, he was going to see that Oil Hill kept his stock up; also asked him about the letter and the contents of the letter, and over the objection and exception of plaintiff in error L. L. Roberts asked Tom Palmer if in a conversation the defendant, Carroll, had said ‘that he took his gum and knife to skin some ducks, but he was going to make Oil Hill keep his stock off the place.’ ”

The record is as follows:

“Q. Do you remember having a little trouble along in September with Mr. Oil Hill over some cattle getting out on your place? A. Yes; I remember going to Mr. Hill. Q. Do you remember at that time telling Mr. Palmer that you told the boys you met that you had a gun and a knife for the purpose of skinning a duck but you was going to see that Oil kept his stock up? A. No, sir. Q. Didn’t have that conversation? A. No, sir. Q. Carroll, didn’t you write a letter to Charley Hayden addressed to him in which you told him that if he didn’t get off that place and let the land alone that he would fall at an unknown hour at your hands ? A. No, sir; I never did write such a letter in my life. I can prove that wasn’t my handwriting. Q. Was there anybody living at White Oak or anywhere else that you know of that was interested in that little patch of ground Hayden was pasturing besides yourself? A. I don’t know anybody living close to Yinita. Q. Is this your letter that I have here? Did you ever see a letter which is a copy of that?
“By Mr. Thompson: We object to this. They should confront him with the original if they have got it, and for the further reason that the testimony shows that the original was turned over to Mr. Roberts. This is the defendant,, and he is entitled to be confronted with the letter. We object even to offering this copy of this letter without they have the original testimony showing that Roberts had the original or that’s the original.
“By the Court: Sustained.
“By Mr. Thompson: I object to him even intimating to the witness about any copy, and ask that the jury be admonished that they are not to consider it.
“By the Court: Sustained. Gentlemen, you will not consider this testimony about this letter that was shown to the witness. It is not competent in this case. ’ ’

All of the questions concerning the trouble with Oil Hill were propounded and answered without objection or motion to strike the answers. The answers were favorable to the defendant, and, as no objection was interposed or exception taken to this line of cross-examination, no action of the trial court is brought before us for review. Price v. Territory, 1 Okla. Cr. 508, 99 Pac. 157; Stack et al. v. State, 4 Okla. Cr. 1, 109 Pac. 126; Dooling et al. v. State, 3 Okla. Cr. 491, 106 Pac. 982.

On motion of defendant’s counsel the trial court excluded all the testimony regarding the letter alleged to have been written by defendant to deceased, and admonished the jury not to consider it. We think this action on the part of the court very favorable to defendant. It was competent to ask defendant if he had not made threats against the deceased where self-defense was pleaded, and this is true whether such threats were written or oral. The defendant having denied the alleged written threat, the court’s action in excluding the purported copy of the letter containing it, without proper predicate having been laid for the introduction of the copy, was correct. But in this case it was entirely proper for the state to cross-examine the defendant in regard' to this alleged written threat, and to impeach' him thereon, provided the writing of the original letter could have been proved as the act of defendant. The trial court fully protected the rights of the defendant in the ruling made.

Counsel also complains of the action of the trial court in permitting the witness Gr. H. Cunningham to testify in rebuttal about a difficulty between the defendant and one Charley Kibbett occurring in 1915. It is contended that this line of examination was over the objection of defendant. The record does not sustain this contention. The entire examination was without objection, except on one occasion counsel for defendant requested the court to strike an answer, which request was promptly sustained. We find, therefore, no ruling of the trial court adverse to defendant in respect to this assignment of error.

It is also contended that the witness “Charley Rex Winkle” was allowed over the objection and exception of defendant, to testify (in rebuttal) about a conversation with Carroll (defendant) that he had his gun loaded to kill Oil Hill. This testimony was partially competent and partially incompetent. The alleged conversation took place in September before the homicide in the spring following. The defendant, as a witness in his own behalf, had testified that the shotgun he carried at the time he shot Hayden did not belong to him, but that it belonged to Mrs. Faulkner, into whose house he had moved in October prior to the killing. Also he had testified that he had purchased the pistol only a short time before the killing. It was competent on rebuttal, proper predicate having been laid in the cross-examination of defendant to show that he had made contradictory statements to those testified to by him concerning guns, in which statement made in September he was talking about “his loaded gun.”

The additional portion of the question relative to the threat of defendant to “kill Oil Hill” was incompetent, and the court should have sustained the objection of defendant’s counsel to the question as asked. But this court is not authorized to reverse a judgment of conviction unless there has been a miscarriage of justice, or else defendant has been deprived of a constitutional or statutory right. Section 2822, Compiled Statutes 1921.

If the testimony of defendant and that of his eodefendant and son, Thara Carroll, disclosed any real or apparent necessity for the use of a deadly weapon in defense of the alleged assault contended by them to have been' made by the deceased on this defendant, the admission of this evidence alone could be regarded as sufficient ground for reversal of this judgment; but standing as it does, the single assignment of error possessing, as we view this record, any substantial merit, the court does not regard it sufficient ground for reversal where no apparent miscarriage of justice resulted in the conviction of this defendant of manslaughter.

Attention is called to other matters occuring during the progress of the trial which counsel in the brief filed contend were prejudicially erroneous to the substantial rights of this defendant.

The assignments heretofore discussed in this opinion were supported in the brief by the citation of authority tending to sustain the position taken, and by argument in addition thereto complying with the rules of this court; but this record is very voluminous, containing approximately 400 pages of typewritten matter, and this court, with only three members, and an average of 325 appeals per annum cannot undertake to review alleged errors not supported by argument and the citation of authority as required by rule 7 (12 Okla. Cr. viii, 165 Pac. x). As to grounds for reversal not directly passed upon in this opinion, it is sufficient to state that an examination of the record discloses that they are without merit as affecting prejudicially the substantial rights of defendant.

We proceed in conclusion to consider what counsel contend to be the most serious error in the record, to wit, the refusal of the trial court to instruct a verdict of not guilty and in overruling the motion for a new trial, both because of the insufficiency of the evidence. When the state concluded its ease in chief there was evidence sufficient to authorize the submission of defendant’s guilt to the jury. There were no other eyewitnesses to the killing except defendant and his son, Thara, who was jointly informed against and tried with him. Thara was acquitted. The killing occurred on premises owned by defendant, a part of which was being occupied by deceased, the scene of the transaction being about 150 yards distance from the house occupied by deceased. Immediately after the shooting deceased walked to his house, and there biade certain statements to his wife (which statements were admitted in evidence as dying declarations, and properly so admitted) to the effect that this defendant had shot him and had called him “a son of a bitch.” Mrs. Hayden also testified that she was in the house, heard a disturbance, went out, and saw her husband coming toward the house, and defendants leaving the scene of the difficulty; that old man Carroll was about 60 feet south of the fence where the shooting occurred, and that Thara was about halfway between the fence and his father; that Thara was carrying a shotgun at the time. Further Mrs. Hayden testified that deceased, when he reached the house, was suffering with a gunshot wound, evidently a pistol wound, through htó body, and that deceased said he was going to die, and did die within five minutes after he reached home; that this occurred in Craig county, Okla., on March 6, 1919.

Another wifeless for the state testified that shortly after the shooting this defendant, in a conversation with witness, admitted the shooting of deceased, stating certain acts by deceased which defendant claimed justified his conduct.

We think, therefore, that the facts and circumstances in evidence at the conclusion of the state’s case were amply sufficient to require the submission of defendant’s guilt of either murder or manslaughter to the jury, and that the refusal of the court to advise a verdict of not guilty was not erroneous. That defendant should have been granted a new trial because of the insufficiency of the evidence as a whole is, we think, equally without merit. While the testimony of the defendant, if believed, tended to establish a killing in defense of his person, his conduct both immediately prior to the shooting and at the time thereof cannot be justified without doing violence to those well-settled rules and statutes which point the duty of one engaged in a quarrel to avoid the necessity of an attack if in his power, and at most to use only such force as was necessary to prevent injury to himself at the time.

Defendant, armed both with a shotgun and pistol, sought deceased, who at most was simply a trespasser on defendant’s land, and, even if defendant’s statement is true that deceased said, •“ ‘If you will lay down that gun I will beat hell out of you,’ and about that time started running toward me with a piece of log chain,” and that when deceased started to throw rocks at him he (defendant) commenced shooting, with a barbed wire fence 45 inches high between them at the time, there is such slight evidence of necessity to use a deadly weapon under such circumstances and such apparent ability to avoid taking human life that defendant should consider himself extremely fortunate that, because of the zeal and ability displayed by eminent counsel, he was only convicted of the crime of manslaughter.

After a careful examination of the entire record the conclusion is reached that defendant was accorded a fair trial by an impartial jury and that the errors complained of were not such as to authorize a reversal of this judgment under the statutes of this state.

Judgment affirmed.

DOYLE and BESSEY, JJ., concur..


text:
    O. C. BUCHANAN et al. v. STATE.
    No. A-4443.
    Opinion Filed June 12, 1923.
    (215 Pac. 1117.)
    Appeal from County Court, Jackson County; J. M. Williams, Judge.
    O. C. Buchanan and another were convicted of the violation of the prohibitory liquor law, and they appeal.
    Appeal dismissed.
    Stansell Whiteside,' for plaintiffs in error.
   PER CURIAM.

Plaintiffs in error, 0. C. Buchanan and V. 0. Buchanan, were jointly charged, tried, and convicted on an information charging that they did have in their possession whisky with the unlawful intent to sell the same, and in accordance with the verdict of the jury the court rendered judgment on the 20th day of March, 1922, and sentenced each of said defendants to be confined in the county jail for 30 days and to pay a fine of $100 and the costs. From the judgment they appealed, by filing in this count on September 6, 1922, a petition in error with case-made. On the 6th day of June, 1923, their counsel of record filed in this court a motion to dismiss their appeal, which motion is sustained. The appeal herein is therefore dismissed, and the cause remanded to the trial court. Mandate forthwith.


text:
    R. S. BAXTER v. STATE.
    No. A-4298.
    Opinion Filed June 14, 1923.
    (215 Pac. 639.)
    (Syllabus.)
    Appeal and Error — Dismissal—Acceptance of Parole. When the pardoning power extends clemency, and the same is accepted pending the determination of an appeal, the appeal will be dismissed.
    Appeal from District Court, Carter County; Thos. W. Champion, Judge.
    R. S. Baxter was convicted of manslaughter in the first degree, and he appeals.
    Appeal dismissed.
    Brown, Williams & Brown, for plaintiff in error.
   DOYLE, J.

In the information in this case, R. S. Baxter was charged with the murder of one A. 0. Ford, alleged to have been committed in Carter county on or about the 15th day of September, 1921, by shooting him with a pistol. Upon his trial the jury found him guilty of manslaughter in the first degree and assessed his punishment at imprisonment in the penitentiary for the term of 20 years. From the judgment of the court, rendered in pursuance of the verdict, on the 24th day of October, 1921, an appeal was taken by filing in this court on April 13, 1922, a petition in error with case-made.

Counsel for plaintiff in error have filed a motion to dismiss the appeal on the ground that a parole has been granted by the G-overnor and accepted by the plaintiff in error.

Where a plaintiff in error accepts a parole pending the determination of his appeal, he thereby waives the right to have his appeal determined, and, when the attention of this court shall be called judicially to the fact that a parole has been granted and accepted, his appeal will be dismissed. Odom v. State, 8 Okla. Cr. 540, 129 Pac. 445.

It is therefore adjudged and ordered that the appeal herein be dismissed, and the cause remanded to the district court of Carter county.

MATSON, P. J., and BESSET, J., concur.


text:
    PEARL HICKS v. STATE. (Two cases.)
    Nos. A-4657, A-4644.
    Opinion Filed June 14, 1923.
    (215 Pac. 794.)
    (Syllabus.)
    Appeal and Error — Dismissal—Acceptance of Parole. Where a plaintiff in error accepts a parole pending the determination of his appeal, he thereby waives the right to have his appeal determined; and, when the attention of the court shall be called judicially to the fact that a parole has been granted and accepted, the appeal will be dismissed.
    Appeal from District Court, Beckham County; T. P. Clay, Judge.
    Pearl Hicks was convicted of two offenses, and' he appeals.
    Appeals dismissed, and causes remanded.
    M. L. Minton and Tracy & Minton, for plaintiff in error.
   DOYLE, J.

In the information in this case Pearl Hicks was charged with obtaining from- one Geo. A. Feland a promissory note for $200, executed by said Pearl Hicks and one A. L. Hicks, by giving said Feland a check in payment of said note. Upon his trial the jury found him guilty and assessed his punishment at imprisonment in the penitentitary for the term of four years. On October 18, 1922, the court rendered judgment on the verdict. An appeal was taken by filing in this court on April 17, 1923, a' petition in error with case-made.

In the information in the other case Pearl Hicks was charged with removing three mares from Beckham county with intent to defraud one Geo. A. Feland, mortgagee and holder of a chattel mortgage executed on said personal property, executed by Pearl Hicks in favor of the said Geo. A. Feland. Upon his trial he was found guilty, but the jury failed to agree as to his punishment. On October 25,1922, the court rendered judgment on the verdict and sentenced the defendant to imprisonment in the penitentiary for the term of one year. From the judgment an appeal was taken by filing in this court on April 23, 1923, a petition in error with case-made.

Pending the determination of said appeals, counsel of record for plaintiff in error filed motions to dismiss these appeals, for the reason that on the 11th day of June, 1923, paroles were granted the plaintiff in error in each of the above entitled and numbered causes by the Governor, and the same were accepted by plaintiff in error.

Where a plaintiff in error accepts a parole pending the determination of his appeal, he thereby waives the right to have his appeal determined, and when notice of this fact is brought to the attention of this court, the appeal will be dismissed. It is therefore adjudged and ordered that the appeals of plaintiff in error, Pearl Hicks, in these two cases be and the same are hereby dismissed, and the causes remanded to the district court of Beckham county.

MATSON, P. J., and BESSEY, J., concur.


text:
    JOE WARD v. STATE.
    No. A-4256.
    Opinion Filed June 15, 1923.
    (215 Pac. 796.)
    Appeal from County Court, Major County; Harry Randall, Judge.
    Joe Ward was convicted of the violation of the prohibition law, and he appeals.
    Affirmed.
    The Attorney General, for the State.
   PER CURIAM.

Plaintiff in error was convicted in the county court of Major county on the 24th day of December, 1921, of the offense of unlawfully transporting intoxicating liquor, and punishment fixed at a fine of $50 and imprisonment in the county jail for a period of four months.

Petition in error and case-made were filed in this court on the 20th day of March, 1922. No brief has been filed in behalf of plaintiff in error, and no appearance was made to orally argue the cause at the time the same was submitted.

An examination of the pleadings, instructions of the court, and the judgment and sentence disclose no prejudicial error.

The judgment is therefore affirmed under rule 9 of this court (12 Okla. Cr. viii, 165 Pac. x).


text:
    GEORGE KIRKMAN et al. v. STATE.
    No. A-4272.
    Opinion Filed June 15, 1923.
    (215 Pac. 1118.)
    Appeal from Superior Court, Okmulgee County; H. R. Christopher, Judge.
    George Kirkman and another were convicted of the unlawful possession of intoxicating liquor, and they appeal.
    Affirmed.
    The Attorney General, for the State.
   PER CURIAM.

Plaintiffs in error were convicted by judgment rendered on December 5, 1921, in the superior court of Okmulgee county, of the offense of unlawful possession of intoxicating liquor, and punishment as to each fixed at a fine of $250 and imprisonment in the county jail for a period of 90 days. A joint appeal was taken to this court, by filing herein on April 3, 1922, a petition in error with case-made attached. No brief has been filed in behalf of plaintiffs in error, and no appearance was made to orally argue the cause at the time same was submitted. Rule 9 of this court (165 Pac. x) provides: “When no counsel appears, and no briefs are filed, the court will examine the pleadings, the instructions of the court, and the exceptions taken thereto, and the judgment and sentence, and if no prejudicial error appears, will affirm the judgment.” After an examination of the pleadings, the instructions of the court, and the judgment and sentence, the court finds that no prejudicial error occurred sufficient to authorize a reversal of this judgment, and the same is therefore affirmed.


text:
    M. L. STINSON v. STATE.
    No. A-4222.
    Opinion Filed June 15, 1923.
    (215 Pac. 1119.)
    Appeal from District Court, Muskogee County; Benjamin B. Wheeler, Judge.
    M. L. Stinson was convicted of assault with a dangerous weapon, and he appeals.
    Affirmed.
    The Attorney General, for the State.
   PER CURIAM.

Plaintiff in error was convicted in the district court of Muskogee county, on the 3d day of October, 1921, of the crime of assault with a dangerous weapon, and sentenced to serve a term of 3 years and 6 months in the state penitentiary. Petition in error and ease-made were filed in this court on the 27th day of February, 1922. No brief has been filed in behalf of plaintiff in error, and no appearance was made to orally argue the cause at the time the same was submitted. Rule 9 of this court (165 Pac. x) provides: “When no counsel appears, and no briefs are filed, the court will examine the pleadingsy the instructions of the court and the exceptions taken thereto, and the judgment and sentence, and if no prejudicial error appears, will affirm the judgment.” After an examination of the pleadings, the instructions of the court, and the judgment and sentence, the court finds that no prejudicial error occurred sufficient to authorize a reversal of this judgment, and the same is therefore affirmed.


text:
    L. C. DAVIS v. STATE.
    No. A-4213.
    Opinion Filed June 15, 1923.
    (215 Pac. 795.)
    Appeal from County Court, Oklahoma County; W. R. Taylor, Judge.
    L. C. Davis was convicted of unlawfully conveying intoxicating liquors, and he appeals.
    Affirmed.
    W. J. Davidson, for plaintiff in error.
    The Attorney General, for the State.
   MATSON, P. J.

This is an appeal from the county court of Oklahoma county, wherein, on the 22d day of October, 1921, the plaintiff in error was convicted of the crime of unlawfully conveying intoxicating liquors and sentenced to pay a fine of $50 and to be imprisoned in the county jail for a period of 30 days.

The cause was submitted on the 22d day of May,. 1923, at which time no brief had been filed on behalf of plaintiff in error, but counsel for plaintiff in error appeared in open court and requested additional time in which to file a brief in this case, and,, for good cause shown, at that time counsel wasi allowed 15 days from the 22d day of May, 1923, in which to file brief in this cause. The time granted plaintiff in error has expired, and no brief has been filed nor any showing made as to why the order of the court was not complied with.

An. examination of the pleadings, instructions of the court, and the judgment and sentence disclose no prejudicial error.

The judgment is therefore affirmed under rule 9 of this court (12 Okla. Cr. viii, 165 Pac. x).

BESSEY and DOYLE, JJ., concur.


text:
    WALTER McCLURE v. STATE.
    No. A-4230.
    Opinion Filed June 15, 1923.
    (215 Pac. 795.)
    Appeal from County Court, MeCurtain County; J. D. Parks, Judge.
    Walter McClure was. convicted of the offense of pointing a gun at another, and he appeals.
    Affirmed.
    The Attorney General, for the State.
   PER CURIAM.

Plaintiff in error was convicted in the county court of MeCurtain county, on the 5th day of January, 1922, of the offense of pointing a gun at another, and sentenced to pay a fine of $50' and to be imprisoned in the county jail for a period of 30 days.

The appeal has been pending in this court since the 6th day of March, 1922. No brief has been filed in behalf of plaintiff in error, and no appearances made to orally argue the cause at the time same was submitted.

The court has examined the pleadings, instructions, judgment, and sentence, and can find no prejudicial error sufficient to authorize a reversal of the judgment.

The same is therefore affirmed under rule 9 of this court (12 Okla. Cr. viii, 165 Pac. x).


author: PER CURIAM'.

text:
    HARRY WATANABE v. STATE.
    No. A-4193.
    Opinion Filed June 16, 1923.
    (215 Pac. 794.)
    Appeal from County Court, Payne County; Raymond H. Moore, Judge.
    Harry Watanabe was convicted of unlawfully conveying liquors, and he appeals.
    Affirmed.
    The Attorney General, for the State.
   PER CURIAM'.

Plaintiff in error was convicted in the county court of Payne county of the offense of unlawfully conveying intoxicating liquors and sentenced to pay a fine of $50 and to be imprisoned for SO days in the county jail.

Judgment was rendered on December 7, 1921, and the appeal lodged in this court on February 3, 1922. No brief has been filed in behalf of plaintiff in error and no appearance was made to orally argue the cause when the same was submitted.

An examination of the pleadings, instructions of the court, and the judgment and sentence, reveals no reversible error.

The judgment of the trial court is therefore affirmed under Rule 9 (12 Okla. Cr. viii, 165 Pac. x) of this court.


text:
    TOM POWELL v. STATE.
    No. A-4231.
    Opinion Filed June 16, 1923.
    (215 Pac. 796.)
    Appeal from County Court, Sequoyah County; William H. Rogers, Judge.
    Tom Powell was convicted of pointing a gun at another, and he appeals.
    Affirmed.

      The Attorney General, for the State.
   PER CURIAM.

Plaintiff in error was convicted in the county court of Sequoyah county, on the 7th day of November, 1922, and punishment fixed at a fine of $50 and imprisonment in the county jail for a period of three months.

This appeal has been pending in this court, since the 6th day of March, 1922. No brief has been filed on behalf of plaintiff in error, and no appearance was made to orally argue the eause at the time the same was submitted.

An examination of the pleadings, instructions of the court, and the judgment and sentence discloses no prejudicial error.

The judgment is therefore affirmed under rule 9 (12 Okla. Cr. viii, 165 Pac. x) of this court.


text:
    EUGENE AUGUSTUS v. STATE.
    No. A-4309.
    Opinion Filed June 16, 1923.
    (215 Pac. 796.)
    (Syllabus.)
    Appeal and Error — Dismissal—Pardon Pending Appeal. When the pardoning power extends clemency, and the same is accepted pending the determination of an appeal, the appeal will be dismissed.
    Appeal from District Court, Pontotoc County; J. W. Bolen, Judge.
    Eugene Augustus was convicted of grand larceny, and he appeals.
    Appeal dismissed.
    King & Crawford, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   MATSON, P. J.

On the 24th day of October, 1921, plaintiff in error, Eugene Augustus, was, in the district court of Pontotoc county, Okla., convicted of the crime of grand larceny, and sentenced to serve a term of five years’ imprisonment in the state penitentiary. An appeal was taken from said judgment by filing petition in error and case-made in this court on April 18, 1922.

The Attorney General has filed a motion to dismiss this appeal for the reason that on the 6th day of January, 1923, the plaintiff in error was given and accepted from the Govern- or of this state a parole for said crime, and is now relying upon said parole so received and accepted, and has therefore abandoned this appeal. Attached to the motion to dismiss the appeal is a copy of a' letter addressed to the Attorney General under date of May 29, 1923, from counsel of record for plaintiff in error stating that such parole was granted by Governor Robertson on the 6th day of January, 1923, and has been accepted by the said Augustus.

It appearing from the motion to dismiss the appeal that plaintiff in error has been granted and has accepted clemency at the hands of the Governor of this state, and for such reason has abandoned this appeal, the appeal for that reason is hereby dismissed in accordance with the uniform holding of this court that where, pending appeal, plaintiff in error applies for, is granted, and accepts executive clemency, the appeal will be dismissed.

Mandate forthwith.

BESSEY and DOYLE, JJ., concur.


text:
    JAMES HILL v. STATE.
    No. A-4045.
    Opinion Filed June 16, 1923.
    (215 Pac. 1077.)
    (Syllabus.)
    Forgery — Evidence Sustaining Conviction. In a prosecution for forgery, evidence held sufficient to support the verdict and judgment of conviction.
    Appeal from District Court, McCurtaiu County; E. P. Lester, Special Judge.
    James Hill was convicted of forgery, and he appeals.
    Affirmed.
    Jeff D. McLendon, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

In the information in this case, James Hill was charged with having forged an instrument in words and figures as follows:

“Idabel, Okla., March 23, 1920.
“The First National Bank.
“Pay to the order of Henry Clay, $47.00' forty-seven dollars.
G. W. Simpson”
Indorsed: ‘ ‘ Henry Clay. ’ ’

And upon his trial he was convicted and his punishment fixed at imprisonment in the penitentiary for the term of five years. He has appealed from the judgment rendered on the verdict, but no brief in support of the assignments of error has been filed, and the cause was submitted on the record and the oral argument of counsel for appellant.

The errors assigned are:

“That the verdict was contrary to the law and the evidence; that there is a variance between the information and the proof, in this, that the evidence shows no other crime than tittering a forged instrument; and misconduct of the assistant county attorney in his argument to the jury byl commenting on the failure of the defendant to testify.”

The facts in this case are these: The defendant presented the check for payment at the First National Bank, of Idabel, the teller went to compare the signature, and when he returned to the window the defendant was gone.

The cashier of the bank testified that he knew the defendant and was in the lobby of the bank when the defendant presented the check for payment; that the teller called him back and asked him about the check, and while they were discussing the check the defendant left the bank.

G. W. Simpson testified that the signature on the cheek was not his; that it was a forgery; that he knew the defendant and did not authorize him to sign said check.

After identifying the check and showing the circumstances under which the defendant tried to cash it, the state offered it in evidence.

There was no testimony offered on the part of the defense.

Where there is any substantial testimony to show the defendant’s guilt of the offense charged against him, the sufficiency of the evidence to support the verdict will not be considered by this court. We think the testimony, without any doubt, is ample to sustain the conviction. Obviously there was no variance between the information and the proof. .

The remaining assignment of error is not sustained by the record.

There being no reversible error in the record, the judgment of the trial court is affirmed.

MATSON, P. J., and BESSEY, J., concur.


text:
    JIM HARTZELL v. STATE.
    No. A-4209.
    Opinion Filed June 16, 1923.
    (215 Pac. 1118.)
    Appeal from County Court, Payne County; Raymond H. Moore, Judge.
    Jim Hartzell was convicted of unlawfully conveying intoxicating liquors, and lie appeals.
    Affirmed.
    The Attorney General, for the State.
   PER CURIAM.

Plaintiff in error was convicted in the county court of Payne county of the offense of unlawfully conveying intoxicating liquor, and his punishment fixed at a fine of $50 and imprisonment in the county jail for a period of 30 days. Judgment was rendered on the 15th day of December, 1921, and petition in error and ease-made were filed in this court on the 14th day of February, 1922. No brief has been filed in behalf of plaintiff in error, and no appearance was made to orally argue the cause at the time same was submitted. Rule 9 (12 Okl. Cr. viii, 165 Pac. x) of this court provides: “When no counsel appears, and no briefs are filed, the court will examine the pleadings, the instructions of the court and the exceptions taken thereto, and the judgment and sentence, and if no prejudicial error appears, will affirm the judgment.” After an examination of the pleadings, the instructions of the court, and the judgment and sentence, the court finds that no prejudicial error occurred sufficient to authorize a reversal of this judgment, and the same is therefore affirmed.


text:
    FRED SMITH v. STATE.
    No. A-4206.
    Opinion Filed June 16, 1923.
    (215 Pac. 1119.)
    Appeal from County Court, Alfalfa County; W. E. Wiles, Judge.
    Fred Smith was convicted of the unlawful possession of intoxicating liquor, and he appeals.
    Affirmed.
    The Attorney General, for the State.
   PER CURIAM.

Plaintiff in error was convicted in the county court of Alfalfa county of the offense of unlawful possession of intoxicating liquor, to wit, 54 gallons of fermented wine, and punishment fixed at a fine of $250 and imprisonment for 90 days in the county jail. Petition in error, with duly certified transcript of the record, were filed in this court on February 11, 1922. No brief has been filed in behalf of plaintiff in error, and no appearance was made to orally argue the cause at the time same was submitted. Rule 9 (12 Okla. Cr. viii, 165 Pac. x) of this court provides: ‘ ‘ When no counsel appears, and no briefs are filed, the court will examine the' pleadings, the instructions of the court and the exceptions taken thereto, and the judgment and sentence, and, if no prejudicial error appears, will affirm the judgment.” After an examination of the pleadings, the instructions of the court, and the judgment and sentence, the court finds that no prejudicial error occurred sufficient to authorize a reversal of this judgment, and the same is therefore affirmed.