text:
    BENJAMIN H. RHEUARK v. STATE.
    No. A-10858.
    May 5, 1948.
    (193 P. 2d 621.)

      O. C. Lassiter and F. C. Swindell, both of Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Troye Kennon, Asst. County Atty., of Tulsa, for defendant in error.
   BAREFOOT, P. J.

Defendant, Benjamin H. Rheu-ark, was charged in the district court of Tulsa county with the crime of driving and operating a motor vehicle over and upon a public highway in the city of Tulsa while under the influence of intoxicating liquor; and the further charge that he had been previously convicted of the same offense, and served a term of one year in the State Penitentiary by reason thereof. He was tried, convicted, and sentenced to serve a term of one year and one day in the State Penitentiary, and has appealed.

This appeal was filed in this court on March 28,1947, and the case was submitted upon the record and oral argument of counsel on March 10, 1948.

In his oral argument, counsel for defendant presented two propositions for the reversal of this case. First, that the evidence was insufficient to warrant the exces-siye punishment assessed by the jury; and, second, that the court erred in not declaring a mistrial by reason of the prejudicial statements made by the county attorney before the jury.

The evidence disclosed that two highway patrolmen arrested the defendant after seeing him run a stoplight in the city of Tulsa, and following him for several blocks. They each testified that his car was weaving back and forth in the street, that defendant was intoxicated when arrested, and that he stated to the officers:

“Boys, you got me. I have been drinking too much to be driving. I am glad you got me here where you did before I ran into somebody.”

The state introduced proof that the defendant had been previously convicted of the same offense, sentenced to serve one year in the State Penitentiary, and that he had been transferred by the sheriff’s office to the State Penitentiary.

The defendant did not take the stand, but introduced three witnesses, and made the proof that he had operated a barbershop in the city of Tulsa for about two years; and one of the witnesses testified that the defendant shaved him and gave him a haircut about 4:15 on the afternoon that he was arrested, and that defendant was sober at that time. The records of the highway patrolmen show that defendant was arrested at 4:55 in the afternoon.

We have only attempted to give a sufficient survey of the evidence to show that the position of the defendant that the evidence was insufficient to warrant the punishment assessed is untenable. It is at best conflicting, and the evidence of the state, if believed by the jury, as tbe verdict indicates, was sufficient for them to reach the conclusion that the defendant was guilty.

In Clogston v. State, 34 Okla. Cr. 209, 245 P. 905, this court stated:

“This court is very reluctant to reverse a case for insufficiency of the evidence, and it is only where there is no testimony from which the jury could rationally find the defendant guilty, or where the evidence is of such a weak and inconclusive character, or where the verdict is so manifestly contrary to the evidence as to convince the court that the jury erred in its judgment on the facts, that a verdict will be set aside for insufficiency of the evidence.”

The evidence in this case fully justified the conviction.

Tit. 47 O. S. 1941 § 93, the section of the statute under which this defendant was prosecuted, provides:

“It shall be unlawful for any person who is under the influence of intoxicating liquor * * * to operate or drive a motor vehicle on any highway within this state * * *. Any person found guilty of a second offense under the provisions of this Act shall be deemed guilty of a felony and upon conviction therefor shall be punished by imprisonment in the State Penitentiary for a period of time not to exceed two (2) years, or a fine of not more than One Thousand ($1,000.00) Dollars or by both such fine and imprisonment.”

This defendant is a persistent violator of this statute. Upon at least two other occasions he has been convicted of a violation thereof, and has appealed to this court, and the judgment and sentence affirmed. Rheuark v. State, 78 Okla. Cr. 121, 144 P. 2d 754; Rheuark v. State, 81 Okla. Cr. 60, 160 P. 2d 413. The fact that the punishment of the defendant was fixed by the jury in this case at one year and one day in the State Penitentiary is a high tribute to the zeal and ability of Ms counsel.

The closing argument of the assistant county attorney, to which objection is made, is set out in full in the record, and we have carefully examined and considered the same.

This court has universally held that a prosecuting attorney should confine his argument before the jury to a fair discussion of the issues in the case, and improper remarks objected to at the time will be considered and construed with reference to the evidence. Workman v. State, 83 Okla. Cr. 245, 175 P. 2d 381; Rheuark v. State, 81 Okla. Cr. 60, 160 P. 2d 413; Hill v. State, 76 Okla. Cr. 371, 137 P. 2d 261.

We have carefully examined the record, and do not find any prejudicial error that would require a reversal of this case. The judgment and sentence of the district court of Tulsa county is therefore affirmed.

JONES and BRETT, JJ., concur.


source: Caselaw Access Project

author: BAREFOOT, P. J.

license: Public Domain

text:
    Ex parte WILLIAM M. MAYFIELD.
    No. A-10991.
    May 13, 1948.
    (193 P. 2d 617.)

      William M. Mayfield, pro se.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for respondent.
   BAREFOOT, P. J.

Petitioner, William M. May-field, has filed in this court a petition for Avrit of habeas corpus, asking his release from the State Penitentiary at McAlester, where he is now confined by reason of a judgment and sentence entered in the district court of Canadian county.

Petitioner was convicted on November 12, 1946, of the crime of attempt to defraud, and sentenced to serve a term of four years.

A response to the order to show cause has been filed by the Attorney General on behalf of the Hon. Clarence P. Burford, Warden of the State Penitentiary, Avherein it is alleged:

“For further return to the rule issued herein, respondent says that the petition and application on file herein does not state facts sufficient to warrant the release and discharge of the petitioner as prayed for therein or to shoAV that said petitioner is entitled to be released or discharged from further retention and imprisonment in the Oklahoma State Penitentiary.
“For further return to the rule issued herein, respondent says and states that by the allegations of said petition filed herein no jurisdictional matters are raised and that all material allegations raised by said petitioner should have been raised by appeal and are not propositions that can he legally raised by application for writ of habeas corpus.”

An examination of the petition and record reveals that this allegation is supported by the facts.

An examination of the records of this court also reveal that petitioner has heretofore filed a petition for writ of habeas corpus in this court, in which the same issues are raised as here presented, and the writ was denied on April 23, 1947. Ex parte Mayfield, 84 Okla. Cr. 158, 179 P. 2d 934.

For the reasons hereinbefore stated, the petition for writ of habeas corpus is denied.

JONES and BRETT, JJ., concur.


author: JONES, J.

text:
    JACK LINCOLN v. STATE.
    No. A-10836.
    May 13, 1948.
    (193 P. 2d 618.)

      R. 0. Swimmer, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Jack Lincoln, was charged in the court of common jileas of Oklahoma county of the offense of illegal possession of whisky, was tried, convicted, and sentenced to serve 30 days in the county jail and pay a fine of $50 and has appealed.

The evidence showed that two deputy sheriffs armed with a search warrant directing them to make a search of room No. 359 in the Alexander Hotel of Oklahoma City, went to the hotel on August 30, 1946, to make a search of said room. The defendant, who was the manager of the hotel was present and accompanied the officers upstairs to room No. 359. When they arrived at the room they found it locked with a padlock. The officers asked the defendant for the key to the padlock, but the defendant said that he did not know whether he could find the key and one of the officers accompanied the defendant back to the hotel desk to try to get the key. While they were gone, the remaining officer pried the hasp off the door and had entered the room. In one of the chest of drawers the officers found 18 pints of whisky and six pints of gin. When the liquor was discovered by the officers, the defendant stated that there was not any use to look any further, that that was all the liquor there was. The officers then tried the key in the padlock which had been given to them by the defendant and it opened the lock.

The defendant testified in his own behalf that he was at the hotel when the officers arrived, but was not present at the desk; that a girl who was staying at the hotel called him to the desk, but Mr. Kolb, one of the officers, had already gone upstairs; that when Kolb asked him for the key to room 359, he said he would have to go back to the desk after it and when he returned with the key he found Mr. Kolb already had broken into the room.

The defendant then testified:

“Q. And did you make any statement up there? A. I said, That must be all of it’. He looked through the drawers and under the mattress and on the floor and into everything he could; and I said, ‘that must be all of it’. Q. Why did you make that statement? A. (no reply). Q. Was it in the interest of preserving the hotel property at the time? A. Well, I figured that was all of it.”

The defendant then testified that the room had been rented on that day to a man named John Walters, who rented the room and remained about two hours before leaving. He introduced in evidence the receipt allegedly given to Walters for the sum of $2 as payment of the rent for the room. The receipt was undated. The receipt read:

“‘August 29th to 31st. 1946. Received from John Walters $2.00 room 359. $2.00 Jack Lincoln’ ”

In this connection the defendant testified:

“Q. Now, wbo wrote out this receipt? A. I did. Q. When did you write it? A. I believe it was on tbe 30th. * * * Q. Do you put all your receipts that way? A. Yes. Q. Don’t you put any dates on them? A. I don’t know what you mean? Q. The receipt is not dated? A. That is all right. I didn’t mark on it — it says: ‘August 29th to 31st.’ Q. This space at the top. There is a place for the date to be Avritten in? A. Yes. Q. Did you write that on August 29th or 31st? A. Must have been on the 29th. Q. You said that he moved in the 30th? A. I write them that way to tell when they went in? Q. What was the rent for? A. $6 a day. Q. And you say that he moved in there that day? A. Yes. Q. And you know he wasn’t there the day before? A. Yes, sir. Q. And you didn’t write it, then, on the 29th? A. Probably not.”

The defendant denied owning the whisky and said he did not knoAV to whom it belonged. The defendant admitted that he had formerly been convicted for illegal possession of intoxicating whisky.

In rebuttal Officer Kolb testified that room 359 gave no evidence of occupancy. He stated that the bed was made and there were no articles of personal property in the room other than the bed and dresser. He further testified that the defendant did not mention that the room was rented to Walters or any other person while the officers were there.

No question as to the validity of the search is presented but counsel for defendant contend that the evidence is wholly insufficient to sustain the conviction.

The evidence of the state was sufficient to make a prima facie case requiring the submission of the issue of defendant’s guilt to the jury. The defendant was manager of the hotel and had the key to the room in his possession. These facts alone, while suspicions circumstances, would not be sufficient to sustain a conviction, but when coupled with the other evidence which showed that the defendant at first refused to get a key for the room but then later produced a key that opened the lock, coupled with the admission by the defendant to the officers when the whisky was found that it was useless to search any further, they had found all of the whisky, makes a damaging case against the accused. This statement admittedly made by the defendant showed a knowledge on the defendant’s part that the whisky was in the room. His explanation as to the alleged occupancy of the room was weak and filled with contradictions. The jury was justified in returning the verdict which they rendered.

This court is committed to the rule that the Criminal Court of Appeals will not interfere with the verdict of a jury on the ground that the evidence is insufficient to sustain the conviction, unless the record affirmatively discloses that there is no competent evidence in the record upon which the verdict could be based. Sheehan v. State, 83 Okla. Cr. 41, 172 P. 2d 809.

It is further contended that the court erred in failing to give an instruction on circumstantial evidence. No instruction on circumstantial evidence was requested by defendant. Apparently, the court and counsel each assumed that the admission by the defendant concerning the whisky was direct evidence, and since the rule is established that no instruction on circumstantial evidence should be given, unless all of the evidence is circumstantial, none was given.

We think the statement by the defendant concerning the whisky was insufficient to amount to a direct confession of guilt, but the admission was merely another strong circumstance tending to show his guilt, and an instruction on circumstantial evidence would have been entirely proper.

It has been held that the failure to instruct on circumstantial evidence does not constitute error when such instruction is not requested. Newcomb v. State, 23 Okla. Cr. 172, 173, 213 P. 900; Klaber v. State, 35 Okla. Cr. 238, 250 P. 142; Strong v. State, 53 Okla. Cr. 99, 8 P. 2d 76.

Lastly, it is contended that the case should be reversed because of alleged improper and prejudicial remarks made by the prosecuting attorney in his closing argument to the jury. The record does not support this assignment of error.

The judgment and sentence of the court of common pleas of Oklahoma county is affirmed.

BAREFOOT, P. J., and BRETT, J., concur.


author: BRETT, J.

text:
    E. R. JACKSON v. STATE.
    No. A-10840.
    May 13, 1948.
    (193 P. 2d 895.)

      E. R. Jackson, pro se.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.
   BRETT, J.

The defendant herein was charged, tried, convicted and sentenced for second degree burglary, second offense, to a term of 50 years in the penitentiary. The defendant demurred to the state’s evidence, offered no evidence in his own behalf though he was represented by able counsel; therefore, the state’s case stands un-contradicted. In substance, it shows that on the night of February 15, 1945, Cecil Brown and Ray Billings, newspaper men in Tulsa, Okla., heard the crash of a show window in the Peacock Jewelry Company located at 404 South Main. Both Brown and Billings testified that they were on their way to get an early morning-snack at a cafe when they heard the crash of the show window. They testified they saw the defendant in front of the show window stick his arm through the broken glass, remove articles therefrom, put them in his pocket and run. They testified further that they followed him down the alley and saw him attempting to hide. They also said they saw him climb a fence near the courthouse in making his getaway. It is apparent that they had ample opportunity to see and observe him and were in position to make positive identification of defendant. There were others in the party who heard the crash of the window but who did not have the opportunity to observe defendant to the point of identification as did Brown and Billings. There being nothing in the record to the contrary, the jury believing the identification sufficient to find the defendant guilty of burglary in the second degree, the verdict of the jury is well grounded from the standpoint of evidence. The store was under the management of David L. Krakower and in his possession. He testified that there were certain watches and articles missing from the window that were there before the burglary. He testified Harry Goldstein owned the store. The state pleaded and offered as evidence of the defendant’s second offense the information, and judgment and sentence, in cause No. 9561. The information alleged in substance the burglary of the Goldberg Jewelry store on November 7, 1939, and pleaded as the basis for second offense, the defendant’s prior plea of guilty on January 11, 1935, to the charge of second degree burglary. The defendant’s demurrer to the evidence is, therefore, without merit for a “case will not be reversed for insufficiency of evidence where testimony of the state is sufficient, if credited by jury, to show defendant’s guilt.” Todd v. State, 82 Okla, Cr. 424, 172 P. 2d 345, 346.

The defendant has prepared a voluminous brief in his own behalf, much of which is devoted to a discussion of matters clearly outside the record, and constitutes no basis for our consideration herein. Under the law we will consider only such matters as appear in the record of the trial below, reflected in the case-made. This has long been the rule in this jurisdiction as was said in Territory v. Cooper, 11 Okla. 699, 69 P. 813:

“5. The purpose of a case-made is to bring into a record for the appellate court all the records, files, testimony, rulings, exceptions, and proceedings in said cause in the trial court; but extrinsic matters constituting no part of the record or proceedings in the trial court cannot be incorporated into the case-made, so as to bring such matters before the appellate court.”

Also in Beatty v. State, 5 Okla. Cr. 105, 113 P. 237:

“1. Matters occurring in open court during the progress of a trial cannot be incorporated in the case-made by affidavits, but must be placed in the case-made by recitals certified to by the judge who presided at the trial of the cause.”

In the body of the opinion at page 107 of 5 Okla. Cr., page 237 of 113 P., it is said:

“The only presumption which the law indulges in favor of a defendant in a criminal case is that of innocence, and, when this presumption is overcome by a conviction, the presumption then prevails that the verdict of the jury is right, and that all of the proceedings in a court of record are regular unless the contrary affirmatively appears. There is no presumption against the regularity of the proceedings in a court of record.”

See Cochran v. State, 4 Okla. Cr. 390, 111 P. 978,

Moreover, this court cannot consider objections raised by petitioner in his petition in error and in his brief which were not incorporated in his motion for new trial. Obviously the trial court should have an opportunity to consider any matters to which the defendant objects and be given the opportunity to correct its own mistakes before they can form the basis for an appeal. This court has repeatedly so held. In Todd t. State, supra, this Court said.

“3. The Criminal Court of Appeals will only consider those questions which are incorporated in the motion for a new trial and thereby submitted to the trial court and its ruling thereon excepted to and afterward assigned for error unless the question is jurisdictional.”

The petitioner’s motion for new trial and his assignments of error raise no jimsdictional questions.

In Johnson v. State, 79 Okla. Cr. 363, 155 P. 2d 259, after stating with approval the foregoing rule, it is said that the only exception to this rule is applied in capital cases where the accused has been sentenced to death upon a plea of guilty. For other expressions of the general rule in cases supra, see Oswalt v. State, 51 Okla. Cr. 338, 1 P. 2d 793; Mobbs v. State, 52 Okla. Cr. 64, 2 P. 2d 974; Langley v. State, 53 Okla. Cr. 401, 12 P. 2d 254; Ballew et al. v. State, 55 Okla. Cr. 247, 28 P. 2d 993; Tuggle v. State, 73 Okla. Cr. 208, 119 P. 2d 857; Herren v. State, 74 Okla. Cr. 424, 127 P. 2d 215; Palmer v. State, 78 Okla. Cr. 220, 146 P. 2d 592.

Since the trial court had no opportunity to consider on the motion for new trial matters set forth in assignments of error Nos 10, 11 and 12, we shall not consider them, and for the further reason that they are. in relation to matters not appearing in the case-made. We can properly consider only the first nine assignments of error, and not all of them, as shall be hereinafter pointed out.

In the first assignment of error petitioner contends that the verdict is contrary to law foi the reason that the information pleads as the basis for the second offense feature of the case the conviction in Case No. 9561, Tulsa county, in which a prior second offense conviction was pleaded. He contends that he had never been convicted on any second offense crime charge prior to the filing of the case at bar, and contends that the same constitutes an invasion of his fundamental rights. The judgment and the recitals therein contained in case No. 9561 offered in evidence on the question of prior conviction of a felony, constitutes the best evidence of the nature of the conviction therein had, and as to whether it was proper in the case at bar to plead a prior conviction for a second offense. It is not necessary to set but in its entirety the judgment and sentence. The pertinent portion of said judgment and sentence says “Prisoner E. R. Jackson * * * having been found guilty of second degree burglary second offense charged in said information and having been then and there in said court legally tried and convicted of said crime’-. It is therefore apparent from the judgment that the defendant was actually convicted as a second offender, but the sentence was as for a first offender only. The foregoing conclusion is confirmed in Jackson v. State, 72 Okla. Cr. 226, 114 P. 2d 953, 955, which is the appeal in this court from Case No. 9561, wherein the facts are almost identical with the facts in the case at bar. Therein this court said:

“The defendant in this case, having been found guilty as a second offender by the jury as charged in the information, could have been given a minimum of ten years in the penitentiary when the jury found him guilty of the commission of the crime with which he was charged. Oklahoma Statutes 1931, Section 1817, Oklahoma Statutes Annotated Title 21, Section 51.”

The judgment of the lower court and opinion of this court on that issue is conclusive. The defendant in case No. 9561 was the fortunate beneficiary of an erroneous verdict of the jury and sentenced by the trial court. That fact avails him nothing in the case at bar. Moreover, it is pertinent to note in this connection that the jury’s verdict in the case at bar, irrespective of the information, judgment and sentence in case No. 9561 offered in evidence herein, as the basis for the second offense charged, is within the law. This is true if for no other reason than upon the stipulation of counsel for the defendant that “the defendant has heretofore been convicted of second degree burglary.” As the Attorney General aptly said:

“The whole question is obscure, but it is immaterial as in either event the defendant was subject to prosecution under the second offense statute in this case, and the punishment inflicted upon him could be given upon the basis of the former conviction of burglary in the second degree without such former conviction having been based upon a still preceding conviction. The length of punishment inflicted in the former conviction which furnishes the basis for the second offense prosecution is altogether immaterial. We conclude that the jury either misunderstood the instructions of the court in that former case and inflicted an inadequate punishment or else the jurors did disregard the prior conviction. It makes no difference in this case what the answer to that question may be.”

With this statement we are in accord. In the case at bar the jury clearly returned a verdict within the limits of the statutes based upon the language of the judgment relied upon for increasing the punishment of the defendant as a second offender and the use thereof herein did not constitute an invasion of the defendant’s rights. This assignment is wholly without merit.

Petitioner in his second assignment of error contends that the information in the case at bar pleaded that the defendant was convicted of second degree burglary, second offense, in case No: 9561, when the evidence, verdict and original court records show he was not convicted of the second offense feature in case No. 9561. Under the argument and conclusions set forth in relation to assignment of error No. 1, this contention is likewise without merit.

Under the third assignment of error defendant complains of what he designates certain errors of law. First, he complains of improper remarks made by the county attorney in his opening statement to the jury. The record discloses that this objection is based upon the county attorney’s statement to the effect that after the defendant had climbed the fence and disappeared, Mr. Brown, a member of the Tulsa World staff, went to the Tulsa police station and there identified a picture of the defendant. To this defendant interposed objection and the court sustained the objection and admonished the jury not to pay any attention to it for the reason that it would not be competent even if established by the state. Under these conditions, the defendant was not prejudiced thereby.

The second portion of the third assignment of error is an objection interposed in relation to the introduction of evidence under the information based primarily upon the proposition that the pleading of the prior conviction as a second offender was in violation of the defendant’s constitutional rights. What has been said in assignment of error No. 1 in relation to this feature of the defendant’s contention is applicable to this part of the assignment.

The next portion of this assignment is in relation to the following proceedings to wit: Mr. Smith was a police officer of Tulsa, Oklahoma, testifying in regard to Mr. Billings and Mr. Brown going to the police station and lie was asked the following question and volunteered the following answer: “After you took them down to the police station and showed them the pictures, what did you do then, or where did you go? A. They identified the picture.” (C. M. 48) Mr. Henneberry the defendant’s attorney objected for the reason that the answer was not responsive and asked that the jury be admonished not to consider it. The court thereupon struck the same from the consideration of the jury. Mr. Hen-neberry then asked for a mistrial which the court overruled. We do not believe under this record the same constitutes prejudicial error.

The next portion of assignment of error No. 3 is in relation to what the defendant says is prejudicial and hearsay evidence. The record discloses that the objection interposed was anticipatory to evidence which the state did not offer.

The objection was as follows, to wit:

“Q. Will you tell the court and jury, please sir, what happened there? What was it went on, and what was said in the presence of the defendant, or by him? A. His sister anwered the door— Mr. Henneberry: Object to that, if the court please. Nothing that was said in the presence of the defendant is binding on him, except what he stated himself, and he is going to relate a conversation had with the defendant’s sister, and even though in the defendant’s presence, it is not binding on him. The Court:. Overruled. Mr. Henneberry: Oh, no; I can show you the cases on that. Mr. Gilmer: We are not going to ask him that. The Court: All right.” (C. M. 50)

Thereafter, Mr. Gilmer says “We are not going to ask him that,” and Mr. Gilmer did not ask him anything upon which the objection was supposed to be based. It is apparent tbe objection was anticipatory to something that never occurred; and this part of the contention is wholly without merit.

The remaining portion of assignment of error No. 3 bears upon the introduction of State’s Exhibits Nos. 1 and 2, being the information in case No. 9561 and the judgment and sentence in said case, respectively. We have heretofore clearly indicated that the introduction of the same was not error It is not necessary for us to repeat what has heretofore been said in relation thereto.

Petitioner’s assignment of error No. 4 is in relation to instruction No. 4 of the court. The defendant contends that the court placed the burden of proof upon the defendant. Instruction No. 4 reads as follows, to wit:

“No. 4. You are instructed that in determining the guilt or innocence of the defendant of the charge alleged in the information in this case, that you will not consider the question as to whether or not the defendant had previously committed a felony in this state and had been convicted therefor. However, if you do find the defendant guilty beyond a reasonable doubt, from the evidence adduced and under the instructions given in this case; and further find from the evidence beyond a reasonable doubt that he was previously convicted of a felony in the State of Oklahoma, then in determining the punishment to be inflicted you may take into consideration such former conviction of a felony, if any, and fix the punishment to be inflicted at not less than ten years, as provided by statute.
“However, if you fail to find from the evidence beyond a reasonable doubt that the defendant has been previously convicted of a felony, then the limits of punishment which may be inflicted upon the defendant, in the event you do find from the evidence, beyond a reasonable doubt, that he is guilty of burglary in the second degree as charged in the information in this case, are from two to seven years, that is to say, not less than two, nor more than seven years.” (C. M. 71)

A casual examination of this instruction discloses that the court did not place the burden of proof upon the defendant. He further contends in this assignment of error that the court failed to instruct the jury as to what constitutes elements of the crime charged. This is wholly without merit, since in instruction No. 2 the court defined the elements of the charge upon which the defendant was being tried. He further contends that instruction No. 4 is erroneous for the reason that the court therein left it open for the jury to find the defendant guilty as a second offender upon any previous conviction of a felony. This is without merit since it clearly appears in said instruction that the finding of guilty beyond a reasonable doubt must be “deduced from the evidence adduced * * * in this case.” It therefore clearly appears from said instruction that the court confined the issue as to second offense to the evidence thereof offered by the state in the case at bar, and did not leave it open to the jury to find him guilty of just any felony that he might have committed within the State of Oklahoma. The said instruction in this regard was therefore not confusing nor misleading to the jury.

The fifth assignment of error in relation to defendant’s requested instruction for a directed verdict of not guilty is based upon a variance between the allegations contained in the information and the proof, in that the information alleges that the property was that of David L. Krakower doing business as the Peacock Jewelry Company, when in fact the evidence showed that it was the property of Harry Goldstein. The information alleges that defendant did

“feloniously break and enter into a certain building used as a jewelry store located at 404 South Main Street in the City of Tulsa, Oklahoma, and being then and there occupied and in the possession of David L. Krakower doing business as the Peacock Jewelry Company with tbe intent to steal therein by then and there, taking, stealing * * * without the consent of the owner thereof, certain personal property of value in said building had and contained, the property of the said David L. Krakower doing business as the Peacock Jewelry Company, with the felonious intent * * * to deprive the owner thereof permanently and to convert the same to his own use and benefit.”

It is true that the evidence discloses that the jewelry store was owned by Harry Goldstein, but the same was being operated as the Peacock Jewelry Company under the management, control and possession of David L. Kra-kower. This fact does not avail the defendant. The elements of the offense with which the defendant is charged are defined in Title 21 O. S. A. § 1435, and reads in part as follows:

“Every person who> breaks and enters any building * * * in which any property is kept, with intent to steal therein or to commit any felony, is guilty of burglary in the second degree.”

The fact that the defendant broke the window and stole certain articles of merchandise therefrom as testified to by Brown and Billings and Mr. Krakower brings the defendant within the provisions of the foregoing statute. The jury found he did so do with the intent to deprive the owner thereof of the use thereof permanently. The fact that the information places both the possession and ownership of the property so taken in David L. Kra-kower when in truth and in fact the ownership was in Harry Goldstein is of no consequence. The information describes the act with sufficient certainty in other respects to identify tbe act and bring it within the clear provisions of the foregoing statute and this is sufficient under the provisions of Title 22 O. S. A. § 406, which reads as follows:

“When an offense involves the commission of, or an attempt to commit a private injury, and is described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured, or intended to be injured, is not material.”

Under this section of the statute in relation to variance, it lias been held that when an offense involves the commission of a private injury an erroneous allegation as to- the person injured is not material and is not a fatal variance where the offense is described with sufficient certainty in other respects to identify the act. Martin v. Territory, 4 Okla. 105, 43 P. 1067; Hawkins v. State, 55 Okla. Cr. 396, 32 P. 2d 101; Cassell v. State, 76 Okla. Cr. 79, 128 P. 2d 1016, 1017, 134 P. 2d 372, wherein this court said:

“The actual status of the legal title to stolen property is no concern of the thief. Possession in person from whom property is stolen is sufficient ownership, in a larceny prosecution.”

And the same rule applies in a burglary prosecution. The matter of the ownership of the property is merely incidental to the breaking and entering with intent to steal, since stealing can be accomplished from one in possession of property of another as well as from the owner. This court has repeatedly so held. In the case of Cordonnier v. State, 86 Okla. Cr. 291, 192 P. 2d 298, 300, this court recently held:

“The actual status of the legal title to the stolen property is no concern of the thief; so far as he is concerned, one may be taken as the owner -who is in possession of tbe property and was unlawfully disturbed by the taking.”

See, Butler v. State, 60 Okla. Cr. 188, 62 P. 2d 662; Little v. State, 21 Okla. Cr. 1, 204 P. 305.

In the ease of Hunsaker v. State, 81 Okla. Cr. 321, 164 P. 2d 404, this court said:

“One in lawful possession of property may be regarded as the owner thereof, as respects necessity of showing that property taken was taken without consent of owner.”

It is therefore apparent that the actual ownership of the property burglariously taken in the case at bar is no concern of the defendant. So far as the issues of this and like cases are involved, it is not necessary in order to constitute burglary, that the possession and ownership be in the same person. Possession of the person unlawfully deprived of property is constituted by the exercise of actual care, control and management of the property. We therefore hold that the allegation in the information that the property belonged to David L. Kra-kower is supported by the proof since the proof shows that David L. Krakower had the possession, care, control and management of the property. This contention on the part of the defendant with reference to variance between the information and proof is without merit.

In his sixth assignment of error petitioner contends that the verdict is excessive resulting from passion and prejudice founded upon untrue evidence. The untrue evidence to which defendant makes reference is the information, judgment and sentence in ease No. 9561 offered herein as proof that the defendant was a second offender. What has been said in relation thereto under the treatment of defendant’s assignment No. 1 suffices here.

The record shows the evidence not to be untrue, but true in that the defendant was convicted in said judgment and sentence in case No. 9561 as a second offender. This portion of the assignment of error is likewise without merit. The balance of this assignment of error reads as follows, to wit:

“* * * the court erred in forcing the defendant to trial without witnesses in his behalf, the court erred in allowing the county attorney to make improper remarks to the jury concerning the defendant, and members of the jury made prejudicial statements to their fellow jurors concerning the defendant, the evidence and material issues of the case, and the Court erred further by allowing certain actions to take place in and near the court room during the course of the trial and in front of the jury that was very prejudicial to the defendants rights.”

This portion of the assignment of error like assignments 10, 11 and 12, is entirely unsupported by the record as reflected by the case-made in the case at bar. We therefore cannot consider it.

Assignment of error No. 7 alleges the verdict is not sustained by the law or the evidence. What we have hereinbefore said is the answer to this contention.

Assignment of error No. 8, to the effect that the court erred in submitting the case to the jury when there was a fatal variance in the allegations of the information and the proof, has been answered , by what we said in relation to assignment of error No. 5.

In assignment of error No. 9, the defendant contends in permitting the state to introduce improper and prejudicial exhibits his rights were infringed upon. This contention is likewise predicated upon the substance of the things that have been discussed under assignment of error No. 1. What ivas said therein applies here with equal force.

The defendant E. R. Jackson contends that the judgment and sentence in a burglary case of 50 years in the penitentiary is excessive even for a second offender. In support of this contention he says that no such sentence has ever been imposed in this character of case in this jurisdiction. With this we agree. In the case at bar the property stolen would not exceed in value a few hundred dollars. The only aggravating circumstance is that of prior conviction. We are of the opinion, when measured by prior decisions of this court involving similar circumstances, that the judgment and sentence herein imposed is excessive. In Choice Jackson v. State, 67 Okla. Cr. 167, 93 P. 2d 55, where the defendant was charged with breaking and entering a dwelling in Nichols Hills and stealing one platinum watch and chain set with diamonds, one man’s gold ring set with one diamond, two lady’s platinum dinner rings set with diamonds, four yellow gold bracelets, ten silver dollars, one Schwab safe, six New York life insurance policies, said property being of the total value of $2,435, and the said defendant was also charged as a second offender, upon conviction thereof his punishment was fixed at imprisonment in the penitentiary for fifteen years. This court therein approved the judgment and sentence. The conditions therein involved are very similar to the situation involved in the case at bar. See also Rogers v. State, 85 Okla. Cr. 516, 185 P. 2d 927, 930. Therefore, upon consideration of the entire record in the case at bar the value of the property involved measured in the light of prior decisions of this court in similar cases, and for the further reason that the conviction herein is based solely and only upon the identification of two witnesses, none of the property stolen having been found on the person or in the possession of the defendant, we find that the punishment herein imposed is excessive and should be modified. Under procedure criminal, 22 O. S. A. § 1066, this court modifies the judgment and sentence herein from a term of fifty years in the penitentiary 'to a term of fifteen years. In this connection as to modification see: Murphy v. State, 72 Okla. Cr. 1, 112 P. 2d 438; Bright v. State, 76 Okla. Cr. 67, 134 P. 2d 150; Ex parte Williams, 63 Okla. Cr. 395, 75 P. 2d 904; Ta Do Quah v. State, 62 Okla. Cr. 139, 70 P. 2d 818.

As modified the judgment and sentence herein is affirmed.

BAREFOOT, P. J., and JONES, J., concur.


text:
    HARRY CAMBRON v. STATE.
    No. A-11024.
    May 19, 1948.
    (193 P. 2d 888.)

      Homer Cowan, of Norman, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.
   BRETT, J.

This is an appeal by Harry Cambrón, defendant beloAV, from a conviction for first degree rape allegedly committed upon the person of Davina June Belden of the age of twelve years. This prosecution was instituted by criminal complaint filed on May 15, 1947, in the county court before Sylvester Grim, county judge in and for Cleveland county, Okla., and by information filed on May 27, 1947, in the district court before Honorable Justin Hinsbaw, district judge of Cleveland county, Okla. The complaint and information both allege that on or about the 1st day of May, 1947, within the jurisdiction of the district court of Cleveland county the defendant Harry Cambrón did “accomplish the act of sexual intercourse with, carnally know and rape one Lavina June Belden, * * * of the age of twelve (12) years, and not' the wife of him,” the said defendant. At the conclusion of the trial the jury found the defendant guilty and fixed his punishment at imprisonment in the State Penitentiary for the minimum penalty of fifteen years and judgment and sentence was entered by the district court of Cleveland county in accord therewith.

This prosecution originated by the police of the city of Norman, Oklahoma, finding the prosecuting witness Lavina June Belden, a girl of twelve years of age, hanging around the interurban station at about 4 o’clock in the morning. They took her into custody and carried her home and turned her over to her parents. She testified that upon reaching her home she did not tell her father and mother anything in relation to the charge that was later lodged against Harry Cambrón. The next day the police called for her and together with her parents she was taken to the police station where she was examined in relation to her conduct. Specific inquiry wa,s made out of. the presence and hearing of Mr. and Mrs. Belden, by the police officers, as to whether or not she ever had relations with Harry Cambrón. The record discloses that at first she stated that she had not had relations with Harry Cambrón, but the police officers talked rough to her and she became frightened. One of the officers said he didn’t believe her, the other said he did. Finally, she told them that she did have intercourse with the defendant. Upon the matters and things as disclosed in this inquiry, this prosecution was instituted.

The defendant makes numerous assignments of error but combines them under four propositions which he urges in his brief.

The first proposition is that the evidence is insufficient to sustain the verdict, judgment and sentence. This contention is grounded primarily upon the proposition that the prosecuting witness was not corroborated and that her testimony was not clear and convincing and bore upon its face inherent evidence of improbability, that it was contradictory and inconsistent. In this connection, at the outset, it is well to note that when the matter came on for oral argument and it was called to the Attorney General’s attention that he had not filed a brief in this case, he stated in open court that it was not his intention to file a brief, that while he was not ready to confess error he was willing to let the matter stand upon the record and the brief of the attorney for the defendant. The contentions of the defendant and the attitude of the Attorney General are predicated upon the state of the record made in the trial below, as follows, to wit: The prosecuting witness Lavina June Belden testified that she was twelve years of age at the time the alleged rape is supposed to have ocurred on May 1, 1947. She first stated that she could not remember when she rode with Mr. Cambrón in his automobile. Then she positively said she did not ride in his car on the 1st day of May. Then she stated that on that day she saw him about 3 o’clock in the evening, but that he did not stop and that she did not see him later on said day, but she did see him two days after. She finally said that about four weeks before the preliminary hearing she did get in a cab with Harry Cambrón and that they rode out near the Boyd Dairy about 3:00 o’clock in the afternoon, and that when they got there he stopped his automobile, but did not do anything and then he went on, that at this time he did not say or do anything, that he just touched her on the arm, that he did not say anything, that be stopped a second time and asked ber if sbe wanted to go back, to wbicb she said “Yes.” That is all sbe said be did .except take her back home, and that was the only time she was ever out near the Boyd Dairy with Harry Cambrón. Then sbe testified that during this particular incident be did have sexual intercourse with her and almost immediately thereafter sbe said it was three days after they were at Boyd’s Dairy that intercourse occurred on a “red dirt road on the way to Noble by a big haystack.” There be held ber band and told ber he would hurt ber if she did not submit. Then sbe says be did not have intercourse with ber at that time but at another time he did have intercourse with ber by the Sooner Show. At another time six or seven miles east of Norman Harry Cambrón had intercourse with her, that he brought her back to town and let her out by Woolworth’s and that is the only time that he treated her in that manner. Then immediately thereafter in her testimony she said that was the second time and then stated that he had intercourse with her four or five times.

On cross-examination she stated that she “don’t know why she told the police that what she did about Harry Cambrón.” She supposed it was because she was scared. That after they left the police station that she went to the sheriff’s office and talked to him for a long time, that she was still scared and that after they had talked to him about three hours they went upstairs and filed a criminal complaint. Thereafter, on the 17th day of May, 1947, she made a signed sworn statement in the presence of witnesses to the effect that she did not have intercourse with the defendant, that Harry Cambrón “has never bothered me or anything like that”; and that she did not know why she said that he had. The record discloses that though the prosecuting witness identified the signature attached to the said statement as hers and admitted that she had stated that she had read the above statement and that it was true and she had signed it voluntarily of her own accord and that nobody was making her sign and no one was making any promise of any reward to her for making the statement, the statement was excluded as evidence on the ground that no proper foundation had been laid and for the reason that witness stated “she never saw it before today.” On further cross-examination she admitted at the preliminary hearing she testified that out near the Boyd Dairy Cambrón had sexual intercourse with her and that that was the only time he had intercourse with her. At the preliminary hearing she further testified that since the incident near Boyd’s Dairy had occurred, she had never been out with him since and that she Avas telling the truth then. She admitted that earlier in her testimony, on the merits of the case, that she had positively stated that Cambrón did not have intercourse Avith her near the Boyd Dairy, but that he did have intercourse with her at another time long after that, on the road leading to Noble down by an old dried-up haystack (as hereinbefore set forth). She testified that this occurred some time in the middle of May and that she was sure about that and that was the only thing that she was sure about. The prosecutrix could not detail any of the occasions on which the alleged acts of intercourse were supposed to have occurred with any degree of satisfaction.

There is not the slightest corroboration of the prose-cutrix’s testimony in the entire record save and except the testimony of Dr. Jim Haddock in relation to the examination which he conducted on May 14, 1947. He stated that it was his opinion that she had had sexual intercourse and that she was capable of having sexual intercourse with a grown man and he was informed by the prosecutrix she had sexual intercourse a number of times with various boys and he stated that she had admitted to him that she had sexual intercourse with a man the night before he examined her on May 14th, which man she did not identify.

The defendant testifying in his own behalf denied he had ever had sexual intercourse with the prosecutrix or had ever been out with her. He testified that while he was employed by the taxicab company he was working in the back office all the time, driving only to and from work and taxiing from 5 to 7 during the interurban rush. He testified he couldn’t ever recall knowing the prose-cutrix though he had known her father and mother, having lived as a neighbor to them for six months when the prosecutrix was two or three years old. He said he moved away from Norman in 1939 or 1940. He testified he did pick the prosecutrix up at the interurban station with a carload of passengers and took her where she wanted to go, and then delivered the balance of the passengers.

We are of the opinion that the defendant’s first objection in relation to the sufficiency of the evidence is well grounded. It is true from an early date this court has adopted the rule that one may be convicted upon the uncorroborated testimony of the prosecutrix. DeWitt v. State, 79 Okla. Cr. 136, 152 P. 2d 284, 289:

“ 'From an early date this court has adopted the rule that one may be convicted upon the uncorroborated testimony of the prosecutrix. Morris v. State, 9 Okla. Cr. 241, 131 P. 731; Douglas v. State, 19 Okla. Cr. 257, 199 P. 927; Ferbrache v. State, 21 Okla. Cr. 256, 208 P. 617; Harris v. State, 27 Okla. Cr. 405, 228 P. 525; Day v. State. 29 Okla. Cr. 49. 232 P. 122.’ ”

But the foregoing rule has been limited with an exception which is as well established as the rule itself. As was said in DeWitt v. State, supra, the exception to the rule is:

“ ‘* * that the testimony of the prosecutrix in a rape case must be clear and convincing, and where it bears upon its face inherent evidence of improbability, is contradictory, inconsistent or unreasonable, it will be held as insufficient, and under these circumstances must be corroborated to the extent of maldng it sufficient. Alcorn v. State, 70 Okla. Cr. 386, 106 P. 2d 838; Williams v. State, 61 Okla. Cr. 396, 68 P. 2d 530; Kilpatrick v. State, 75 Okla. Cr. 28, 128 P. 2d 246; Gordon v. State, 75 Okla. Cr. 356, 131 P. 2d 503; Weeden y. State, 73 Okla. Cr. 258, 120 P. 2d 379; Burtt v. State, 64 Okla. Cr. 68, 77 P. 2d 580.
“ ‘This rule has more often been applied in cases where the prosecutrix is a child of tender years and more susceptible of coming under the influence of others, or through fear, threats, coercion or duress. Self v. State, 62 Okla. Cr. 208, 70 P. 2d 1083; Woodruff v. State, 74 Okla. Cr. 289, 125 P. 2d 211.
“‘In the Weston case, supra (Weston v. State, 77 Okla. Cr. 51, 138 P. 2d 553), reference is made to the Sowers case, supra (Sowers v. Territory, 6 Okla. 436, 50 P. 257), which is based upon the reasoning of Sir Matthew Hale, one of the greatest judges of criminal law of all times. The general rule, and the one recognized and followed by this court, is that where there is any evidence to support the verdict, or where the evidence is conflicting, the appellate court will not examine the record for the purpose of ascertaining or determining the weight of such evidence and the verdict approved by the trial judge wall be permitted to stand. But in cases of this character, an exception is recognized to the general rule above stated, and that exception is that in rape cases the appellate court will make a careful examination of the whole record to the end that it may justify the sentence imposed. This exception is based upon the firm foundation announced by Sir Mathew Hale when he said:
“It is true that rape is a most detestable crime, and therefore severely to be punished, with death; but it must be remembered that it is an accusation easily to be made, and hard to be proved, and harder to be defended by the party accused, though never so innocent.”
“ ‘In the Weston case, the judgment and sentence was reversed. We there said * * *:
“ ‘ “This is what we mean when we say that cases of this character should not be decided upon technicalities, based upon a fixed policy that the verdict of the jury is final and absolutely correct on every proposition of fact. The doctrine that one may be convicted on the uncorroborated testimony of the prosecutrix has an exception to the rule that is as well founded as the rule itself, and that is that where her testimony is contradictory, uncertain, improbable or she has been impeached, her testimony should then be corroborated. And this corroboration should be of such dignity as to give it weight with the jury upon the question that the actual crime has been committed. It should not be such slight circumstances as to leave the court and jury to guess or speculate that the crime has been committed and that the defendant is guilty. * *

Here the testimony of the prosecutrix is contradictory, uncertain, improbable and impeached. Under these circumstances, for the conviction herein had to' stand, her testimony must under the law be corroborated by evidence rising to such degree of dignity as to remove the guilt of the defendant from the realm of speculation, at least, as to the date of the act alleged and relied upon by the state to support the conviction. The proof is entirely insufficient, so highly improbable, contradictory and inconsistent as to be almost unbelievable as to any act of sexual intercourse occurring near Boyd’s Dairy on May 1, 1947. The state relying upon this date and this act to support tbe conviction herein, this conviction must of necessity be reversed for the lack of evidence to support the charge as laid in the information.

At the conclusion of the testimony, the defendant moved that the state be required to' elect upon which act of intercourse they desired to base the prosecution. This motion was by the court overruled. The matter was permitted to go to the jury without such an election being made, with the resulting verdict as hereinbefore referred to.

The defendant urges this failure on the part of the court as ground for reversal. In this connection the trial court erred in not requiring the State to elect. Even had no motion been made to require the State to elect, the trial court on its own motion should require such an election or should treat the act on which the State first introduces evidence which tends in any degree to prove the offense charged as an election, and then should limit the jury to a consideration of such particular act as a basis for conviction, and should limit proof of other acts as corroboration or as showing relation of the parties. Cooper v. State, 31 Okla. Cr. 217, 238 P. 503, lays down this rule precisely as did Moorehead v. State, 38 Okla. Cr. 328, 261 P. 231; Smith v. State, 20 Okla. Cr. 124, 201 P. 663, wherein it was said:

“1. In prosecution for statutory rape, where there is evidence of more than one act of sexual intercourse between defendant and prosecutrix upon which a conviction could be based, the trial court should either require the prosecution to elect upon which of such acts it would rely for a conviction, or else have treated the act of which the state first introduced evidence to tend in any degree to prove the offense as an election and should have given a specific instruction limiting the jury to a consideration of such particular act as a basis for a conviction.
“2. In this state a person may be tried for and convicted of only one offense at a time. Rape is not a continuous offense, and whilst in a prosecution for statutory rape proof of other acts of intercourse, occurring both prior to and subsequent to the one relied upon for a conviction, may be proved for the purpose of showing the intimate relations between the parties, etc., the conviction must be based solely upon one of such acts and not all of them, and it is error prejudicial to the defendant, where no election of acts is required, to instruct the jury in effect that a conviction should result from proof beyond reasonable doubt of any of such acts.”

To the same effect is Kilpatrick v. State, 71 Okla. Cr. 129, 109 P. 2d 516, 517, wherein the court after stating the rule with reference to election further said:

“In a trial upon a charge of rape, proof of other acts of intercourse may be shoAvn for the purpose of corroboration and as showing the relation between the parties ; but a conviction must be based on one act. Where, as in this case, the defendant is not tried with reference to one particular act, but two separate and distinct acts, reversible error is committed when the prosecution is not required to elect one specific act and the trial court fails to treat the first act proven as an election.”

An examination of this record discloses that this case was tried upon the alleged act of intercourse of May 1st as well as the subsequent act occurring on the Noble road, and the other acts not detailed in any respect. In the light of the foregoing authorities, the trial court in not requiring the state to elect upon one particular act, and not confining the court’s instructions to the alleged act of May 1st by Boyd’s Dairy, and in submitting the question of guilt on all acts in the shotgun fashion, clearly committed reversible error. If the trial court had sustained the defendant’s motion requiring the state to elect upon which act it desired to predicate the conviction, the jury might have convicted the defendant on the Noble road act of sexual intercourse. Under the record herein made it was certainly error not to do so. Moreover, the trial court having failed to treat the first act proven as an election, it is inescapable that we hold that reversible error was committed.

The next contention urged by the defendant is that the court committed reversible error in refusing to admit the prosecuting Avitn ess’s signed and witnessed statement made on May 17, 1947, which is contradictory to and inconsistent writh statements made prior thereto and contradictory to and inconsistent with testimony given at the preliminary hearing and in the trial on the merits. She stated as follows, to wit:

“State of Oklahoma
\ j
“Cleveland County
“Statement of Laven a June Belden
“By C. Cockerell:
“Q. Now Lavena, have you been present during the time your father has been talking here in Mr. Cowan’s office this morning all of the time? A. Yes.
“Q. Were you going to write out your statement yourself this morning? You go ahead and tell me in your own words that you were going to- write. A. Harry Cam-brón, he wasn’t guilty at all, and he never has bothered me or anything like that. I was going to write that Mr. Cambrón was a pretty nice man; that he never has hurt me or anything like that. I went to his cab and there was a friend of mine in there I knew, and I told him I wanted to see her for a minute and she got back in his taxi and he taken her home and he came back and taken me home, and he came back to town by this self.
“Q. Why did you make the statement before that Mr. Cambrón had bothered you. A. Well, I don’t know why I said it.
“I have read the above statement and it is the truth and I am signing it of my own accord. Nobody is making me do it and no one has promised me any reward for making this statement.
“(Signed) Lavena June Belden
“Witness:
“Angelita Belden
“Carolyn Cockerell”

This court has repeatedly held that the credibility of the prosecutrix may be impeached by proof that she made statements relative to the issues contrary to what she has testified to on the trial. In Alcorn v. State, 70 Okla. Cr. 386, 106 P. 2d S38, this court said:

“3. In prosecution for statutory rape, the credibility of the prosecutrix may be impeached by proof that she made statements relative to the issues contrary to wrhat she has testified to on the trial.”

Tn the body of the opinion, 78 Okla. Cr. at page 401, and 106 P. 2d, at page 844, respectively, this court laid down the rule with reference to impeaching the witness as follows, to wit:

“The methods of impeaching a witness are well defined. The three general classes of evidence by which a witness may be impeached are:
“ ‘ (1) Character evidence tending to show that the witness lacks truthfulness, (2) That on former occasions he has failed to state material facts, or different or conflicting facts testified to by him on the present occasion, (3) Evidence showing that his present testimony is materially variant from acts done, or statements made, at other times.’
“ ‘Another mode of discrediting a witness is by showing (either through cross-examination or by other witnesses) that the witness has at another time stated the opposite of what he now states or has otherwise varied from his present story. Here, “that which sets aside his credit and overthrows his evidence,” in the words of Chief Baron Gilbert, is “the repugnancy of his evidence,” “inasmuch as contraries cannot be true,” and therefore he must be in error in at least one of the two statements; and if in error once, then perhaps also in other undetected instances. The probative value of this process — showing error and the capacity to err — is therefore much the same as in that of the preceding section, though the mode is somewhat different. The probative force thus arising merely from the inconsistency and the apparent falsity of one of the two statements, it follows, on the one hand, that the admission of the prior inconsistent statement does not violate the Hearsay rule, and, on the other hand, that it is not to be taken as affirmative evidence of the fact stated in it; for the reason, in both cases, that it is not offered as a testimonial assertion, but only as inconsistent with the present statement.’ 1 Greenl. Ev., 16th Ed. Sec. 461.”

To the same effect is Self v. State, 62 Old a. Cr. 208, 70 P. 2d 1083. The statement offered and rejected by the trial court being at variance, contradictory to and inconsistent with prior statements and the testimony given by the prosecuting witness in the foregoing statement, a portion of which has been quoted verbatim, was clearly admissible as tending to impeach the credibility of the prosecutrix. It should have been admitted. It was error for the court not to permit the same after proper predicate had been laid for admission of the same, which we believe was made in the case at bar.

The defendant urges, as his final ground for reversal, the proposition that the trial court should have instructed the jury that under the provisions of Title 21 O. S. A. § 1123, as an included offense on a charge of rape, jury may find one guilty who makes lewd or indecent proposals to a female child under 14 years of age, to have sexual relations or intercourse with him, or any other person, etc., and assess the penalty therein provided. He contends it was error for the court so not to do. The record discloses this contention was not urged at the time of trial, and that no request for such instruction was then made by the defendant for an instruction based on said statute. Under this state of the record, and in view of the necessity for reversal on the other grounds herein-before discussed, even though the contention has merit, we reserve our opinion on this proposition until the matter can first be presented to the trial court for its consideration.

For the reasons stated the judgment and sentence is reversed, and the cause remanded for further proceedings and new trial not inconsistent with this opinion.

The warden of the penitentitary at McAlester will deliver the defendant to the sheriff of Cleveland county, who will hold the defendant in custody until otherwise ordered according to law.

BAREFOOT. P. J.. and JONES. J.. concur.


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    Ex parte BILL KIRK.
    No. A-11052.
    May 19, 1948.
    (193 P. 2d 904.)
    Bill Kirk, pro se.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for respondent.
   BAREFOOT, P. J.

Unverified petition for writ of habeas corpus was filed in this court by Bill Kirk on April 16, IMS, seeking his release from the State Penitentiary at McAlester, on the grounds that his confinement therein ivas illegal and unlawful.

An investigation of the records reveals that this petitioner was convicted of the crime of robbery with firearms in the district court of Tulsa county on or about October 10, 1931, and sentenced to serve 35 years in the State Penitentiary. That he escaped from the penitentiary on or about May 2, 1945, and subsequent thereto was sentenced in the State of Missouri to the penitentiary of that state, and on the date of filing the petition herein was confined in the Missouri State Penitentiary, at Jefferson City.

For the reason that the petitioner was not actually confined in the State Penitentiary at McAlester, Okla., on the date of the filing of his petition herein, the petition for writ of habeas corpus is dismissed.

JONES and BRETT, JJ., concur.


text:
    Ex parte DELBERT RANDLE CORNELL.
    No. A-11021.
    May 19, 1948.
    (193 P. 2d 904.)

      Cobb, Hill & Godfrey, of Oklahoma City, and John W. Tyree, of Lawton, for plaintiff in error.
    ■ ’ Mac Q. Williamson, Atty. Gen., and Sam H. Latti-niore, Asst. Atty. Gen., for defendant in error.
   JONES, J.

This is an original action in habeas corpus instituted by the petitioner, Delbert Randle Cornell, to secare his release from confinement in the State Penitentiary.

The verified petition alleges that the petitioner was charged by an information filed in the district court of Grady county, with the crime of murder on February 21, 1947; that on the same date he was arraigned before the said district court, and entered bis plea of guilty to said charge, and was immediately sentenced to serve a term of life imprisonment in the State Penitentiary.

The petition further alleged that at the time of the commission of the alleged homicide, the accused was sixteen years of age, and was only seventeen years of age at the time of his arraignment and plea before the district court; that the petitioner was without counsel and did not have counsel to advise with him or represent him before the district court, and was not advised by the court that he could have counsel to represent him, and that the state would pay the cost of such counsel if the accused was without funds to do so; that petitioner had never gone beyond the eighth grade in school; had never been in court before his arraignment; was wholly ignorant of the workings of the law; that he was not served with a copy of the information nor a list of the witnesses two days before his arraignment; and that said petitioner being a minor of the age of seventeen years, was wholly incompetent to waive any of his fundamental constitutional and statutory rights; and that by reason thereof, the court was without jurisdiction to pronounce sentence upon the plea of guilty allegedly entered by the petitioner, and that said judgment should be vacated and the petitioner discharged from imprisonment.

In the response filed on behalf of the warden of the State Penitentiary, it was alleged that he was holding petitioner pursuant to a judgment and sentence pronounced by the district court of Grady county, on February 21, 1947, wherein said petitioner was sentenced to serve a term of life imprisonment in said penitentiary on a plea of guilty entered by him for the crime of murder; that the said petitioner had freely and voluntarily signed a complete and detailed confession of his commission of a brutal murder; that he was advised by the Honorable L. A. Wood, judge of the district court of Grady county, of all of his rights upon his arraignment before said court on February 21, 1947; that defendant’s plea was entered at a time when the courtroom was full of jurors, witnesses, lawyers, and other people; that after the defendant’s rights had been fully discussed with the defendant, he voluntarily waived his right to counsel, waived time within which to plead, and asked the court to pronounce sentence immediately.

At the hearing before this court, testimony was presented on behalf of the petitioner and also in support of the response. The petitioner swore that he had never been in court before he was charged with this crime; that he was never given opportunity to discuss the alleged crime with his parents nor with any other person except the officials of Grady county; that upon his arraignment he was not informed of his right to counsel, but that he entered a plea of guilty as a result of a verbal understanding made to him by the county attorney, that if he would enter a plea of guilty he would not receive over ten years in the State Penitentiary.

The petitioner’s aunt and uncie testified that they lived at Lawton; that they heard of the arrest of the petitioner and together with the boy’s grandfather they came to the county jail at Chickasha to converse with him and advise him they had employed a lawyer to look after his interest; that when they arrived at the courthouse they were refused permission to talk with the accused; that later the assistant county attorney told them that they could see him for a few minutes but not to discuss the case with him; that thereafter the three of them talked to Delbert Cornell in the presence of the jailer; that they started to mention the case but the jailer stopped them and told them not to advise him nor talk to him any at all about the case; that they had employed John Tyree of Lawton to represent Delbert, and that when they talked to the assistant county attorney, he told them that he would not have a hearing before a couple of weeks; that they then told the county attorney that they would go back home and tell Mr. Tyree what had occurred and would then bring him and come back to Chickasha; that all of these things occurred on Thursday before the arraignment and sentence of the accused on Friday. They further testified that the mother of the accused was living in Lawton; but that because of her health she was unable to go with them to Chickasha to see her son; they also testified that the petitioner was sixteen years of age at the time of the commission of the alleged crime and was only seventeen at the time of his arraignment and plea. They further testified that when they left the sheriff’s office, they gave the sheriff their telephone number and address, and asked him to notify them if anything turned up on the case, but that they were never notified by the sheriff’s office that defendant was about to be arraigned nor were they later notified that he had entered his plea of guilty.

The minutes of the court proceeding at the time of arraignment of the accused read:

“Feb. 21, 1947
“The defendant was arraigned and admonished as to his rights, and entered his plea of guilty. He was asked by the Court if there was any reason why judgment and sentence should not be pronounced against him, and he giving no reason in bar thereof, the Court sentenced the defendant to Life in the State Penitentiary at Mc-Alester, Oklahoma, for the crime of murder in the first degree.”

On behalf of the respondent there was introduced in evidence the typed, signed confession of the accused, Delbert Randle Cornell, which the county attorney swore, was given to him freely and voluntarily after the accused had been fully advised of all of his rights. In this confession the defendant admitted killing the deceased with a rifle for the.purpose of taking his money. The county attorney and district judge each testified that upon arraignment of the defendant in the district court, the district judge first inquired of the defendant as to his age and was told by the defendant that he was seventeen years of age; that the district judge then told the defendant that he had a right to be represented by counsel and that if he was unable to employ counsel, the district judge would appoint one for him; that he was advised of his right to additional time to plead but defendant told the judge that he did not desire that an . attorney be appointed to represent him; that he wanted to waive his time in which to plead and enter his plea at that time; that the district judge then asked the defendant what his plea was and the defendant replied “guilty.” The district judge then asked the defendant if he understood that upon a plea of guilty to a charge of murder there were only two sentences which could be imposed: one of life imprisonment at hard labor in the State Penitentiary, and the other was death in the electric chair, and the defendant answered that he understood that to be correct, and the judge then inquired of the defendant whether he still wanted to enter a plea of guilty to said charge, to which the defendant replied, “Yes.” The district judge then asked the county attorney for a recommendation and the county attorney stated that owing to the age of defendant, he would recommend life imprisonment as his punishment; that the county attorney at that time handed to the district judge a five page typewritten statement signed by defendant giving the facts in the case; that the judge asked the defendant if he had signed the statement and defendant said that he had and that it was his free and voluntary statement, and that the facts therein set forth were true; that thereupon the court sentenced the accused to a term of life imprisonment in the State Penitentiary.

We are convinced and find from the evidence that at the time of the arraignment of the accused, he was fully advised as to all of his constitutional and statutory rights.

This proceeding then resolves into the question as to whether, as a necessary requisite of due process of law, the trial court should have appointed counsel to advise with the accused and represent him where it is affirmatively shown that the accused is a minor only seventeen years of age who had never before been in a courtroom and was charged with a capital offense. Our answer to this question is in the affirmative. We have had occasion to discuss a similar question in the recent case of Ex parte Cook, 84 Okla. Cr. 404, 183 P. 2d 595, 596.

The syllabus of that case sets forth the rules of law which guide this court in determining the issues presented in the instant case. These rules are as follows:

“Under Bill of Bights (Art. 2, § 20, Okla. Const.) an accused has the right to consult with counsel and to be fully advised as to his rights and as to the consequences of his act before entering his plea to the indictment or information.
“A plea of guilty should be entirely voluntary, and should be made by one competent to know the consequences thereof, and should not be accepted until after the defendant has been fully advised by the court of his rights and the consequences of his plea.
“When a person is held in custody under a void order of commitment, or is imprisoned without due process of law under the sentence of any court of the state, it is not only within the authority of this court but it is its duty upon habeas corpus to inquire into the illegality of the commitment when the matter is properly brought before it by petition, and if it be adjudged that the order of commitment was made without authority of law, the person will be entitled to a discharge from custody in order to preserve the constitutional right of all persons not to be deprived of liberty without due process of law.
“A person prosecuted for a crime may waive the rights guaranteed to him by Bill of Rights, relating to trial by jury, right to be heard by counsel, etc.
“Courts indulge every reasonable presumption against a waiver of fundamental constitutional rights, and do not presume acquiescence in their loss.
“Whether one accused of cíame has waived his right to the assistance of counsel for his defense must depend in each case upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.
“Habeas corpus is an available remedy to one who has, without having effectively waived his constitutional right to the assistance of counsel, been convicted and sentenced and to whom expiration of time has rendered relief by an application for a new trial or by appeal unavailable.
“One charged with crime is as much entitled to assistance of counsel in preparing for trial as at the trial itself.
“In a felony case, where the defendant is unable to employ counsel and is incapable adequately of making Ms own defense because of ignorance, feeble-mindedness, illiteracy, or tbe like, it is the duty of the court, whether requested or not, to assign counsel for him as a necessary requisite of due process of law.
“A judgment of conviction of one who did not effectively waive his constitutional right to the assistance of counsel for his defense is void as having been rendered without jurisdiction.
“Where the accused is young, illiterate, and inexperienced in court proceedings, and charged with felony, the court should proceed with caution. The caution to be exercised depends upon the age and experience of the accused and the gravity of the offense charged.
“A judgment and sentence to the maximum term of imprisonment in the State Penitentiary on plea of guilty to burglary, by uneducated, illiterate, and inexperienced youth, seventeen years of age, will be vacated and set aside where record discloses that upon day accused was arrested he was arraigned in District Court without counsel and sentenced less than an hour after his arraignment before a Justice of Peace, and record further discloses that parents of accused, who lived in county, did not learn of his arrest until after he was sentenced to penitentiary. Under circumstances there was not an intelligent waiver of the constitutional rights of the accused and court should have appointed counsel to represent the accused as a necessary requisite of due process of law before accepting a plea to the felony charge filed against him.
“Where questions raised in habeas corpus petition for release from penitentiary concern denial of some of petitioner’s statutory pr constitutional rights in connection with his arraignment and pronouncement of judgment and sentence against him, proceedings after filing of information in district court should be vacated, but petitioner should be remanded to such court and proceeded against therein as if never arraigned on such information, instead of being unqualifiedly discharged from incarceration.”

In that case the petitioner, Cook, who was seventeen years of age, had been sentenced to serve a term of seven years imprisonment in the penitentiary on a plea of guilty to the charge of burglary in the second degree. Cook had been involved in trouble before and there was no dispute but what the district court at the time of the arraignment of the accused had advised him of all of his rights the same as was done in the instant case by Judge Wood. In disposing of the question as to whether a minor defendant of the age of seventeen years could effectively waive his rights to the assistance of counsel, this court stated:

“The right of one accused of crime to the assistance of counsel in the preparation of his defense has long been regarded in this country as essential to the due administration of justice in criminal cases. Our Constitution, Art. 2, § 20, Okla. Const., provides that in all criminal prosecution the accused ‘shall have the right to be heard by himself and counsel.’
“Our code of criminal procedure provides: ‘If the defendant appear for arraignment, without counsel, he must be informed by the court that it is his right to have counsel before being arraigned, and must be asked if he desire the aid of counsel. If he desires, and is unable to employ counsel, the court must assign counsel to defend him.’ 22 O. S. 1941 § 464.
“In Polk v. State, 26 Okla. Cr. 283, 224 P. 194, it was held: ‘Under our laws every person accused of felony is entitled to aid of counsel at every stage of the proceedings, whether imprisoned or admitted to bail, and refusal of opportunity to procure such counsel amounts to a deprivation of a right essential to his safety.’
“In the ease of Ex parte Meadows, 70 Okla Cr. 304, 106 P. 2d 139, 141, this court adopted the following provisions of law as shown by the syllabus:
“ ‘Under bill of rights, sec. 20, Okla. St. Ann. Const., an accused has the right to consult with counsel and to be fully advised as to his rights, and as to the consequences of his act before entering his plea to the indictment or information.’
“ ‘A plea of guilty should be entirely voluntary, and should be made by one competent to know the consequences thereof, and should not be accepted until after the defendant has been fully advised by the court of his rights and the consequences of his plea.’ * * *
“ ‘Where the accused is young, illiterate, and inexperienced in court proceedings, and charged with a felony, the court should proceed with caution. The caution to be exercised depends upon the gravity of the offense charged:’
“In the case of In re Stevens, 81 Okla. Cr. 65, 160 P. 2d 415, 418, it is stated in the body of the opinion: ‘In Ex parte Meadows, supra, and Ex parte Barnett, 67 Okla. Cr. 300, 94 P. 2d 18, this court followed the opinion of the Supreme Court of the United States in the case of Johnson v. Zerbst, 304 U. S. 458, 58 S. Ct. 1019, 1024, 82 L. Ed. 1461, 146 A. L. R. 357, in which it is stated: “When this right (to counsel) is properly waived, the assistance of counsel is no longer a necessary element of the court’s jurisdiction to proceed to conviction and sentence. If the accused, however, is not represented by counsel and has not competently and intelligently waived his constitutional right, the Sixth Amendment stands as a jurisdictional bar to a valid conviction and sentence depriving him of his life or his liberty. A court’s jurisdiction at the beginning of the trial may be lost.‘in the course of the proceedings’ due to failure to complete the court — as the Sixth Amendment requires — by providing counsel for an accused who is unable to obtain counsel, who has not intelligently waived this constitutional guaranty, and whose life or liberty is at stake. If this requirement of the Sixth Amendment is not complied with, the court no longer has jurisdiction to proceed. The judgment of conviction pronounced by a court without jurisdiction is void, and one imprisoned thereunder may obtain release by habeas corpus. A judge of the United States — to whom a petition for habeas corpus is addressed — should be alert to examine 'the facts for himself when if true as alleged they make the trial absolutely void.’ ” See, also, in this connection, Mullen v. State, 28 Okla. Cr. 218, 230 P. 285; Goben v. State, 20 Okla. Cr. 220, 201 P. 812; Ex parte Robnett, 69 Okla. Cr. 235, 101 P. 2d 645.’ * * *
“It is our conclusion that because of the youthfulness, illiteracy and inexperience of the petitioner, and the fact he was charged with a serious crime was sufficient to require the court as a necessary requisite of due process of law to appoint counsel for him, even though petitioner did not ask for aid of counsel. Although a trial court upon arraignmeent of one accused of crime might tell the defendant of his various rights under the law, such talk is meaningless if the person accused is so youthful, ignorant and inexperienced in court proceedings that he does not understand all the court means or the nature and consequences of the proceedings through which he is passing. In Oklahoma, a person may not in a civil suit take a judgment against a minor without the appointment of a guardian ad litem. Certainly, if the law protects the accused in his property rights in a civil case to that extent, then as equally a solemn duty should be imposed upon the court when a minor defendant is brought before him accused of a felony where his life and liberty are likely to be taken.”

We have had many cases involving similar questions to those here presented and we have never held that a minor defendant may not waive his right to counsel in a criminal case, but we have stated repeatedly that the trial court should be extremely cautious in receiving a plea in a criminal case from a minor defendant where he appears without counsel and attempts to waive his right to counsel, and that in such cases where the youth is seeking to plead guilty without the benefit of counsel, that the plea should not be received until the parents or guardian of the youth have been notified and had an opportunity to determine what should be done if anything for the defendant. These conclusions of ours apply to the ordinary criminal case. This is the first time we have had a habeas corpus proceeding where a minor defendant was sentenced on a murder charge without being represented by counsel. It is our opinion that in a capital case where the accused is youthful and inexperienced, the court should appoint counsel to represent him before receiving his plea as a necessary requisite of due process of law, and that this appointment of counsel should be made and further arraignment of the accused delayed until counsel has had time to fully advise with the accused concerning the charge against him. This appointment of counsel should be made even though the youthful offender states that he does not desire counsel.

It is our judgment that the district court of Grady county lost jurisdiction to pronounce judgment against the petitioner, Delbert Eandle Cornell, by his failure to complete the court by appointing counsel to represent petitioner before the plea was entered and that therefore the judgment and sentence pronounced against the petitioner was void.

It is therefore ordered that the judgment and sentence filed against the petitioner, Delbert Eandle Cornell, in case No. 3604 in the district court of Grady county and all of the proceeding of the said court in said cause subsequent to the filing of the information therein be and the same are hereby vacated and set aside.

It is further ordered that the writ of habeas corpus be issued and the warden of the State Penitentiary at McAlester is hereby ordered to deliver the petitioner, Delbert Randle Cornell, to the custody of the sheriff of Grady county.

It is further ordered that the sheriff of Grady county detain in custody the said Delbert Randle Cornell pending the trial or other disposition of the charge filed against him in case No. 3604 in the district court of Grady county as provided by law in such cases.

BAREFOOT, P. J., and BRETT, J., concur.