text:
    ANNA BROWN v. STATE.
    No. A-3362.
    Opinion Filed April 16, 1920.
    (188 Pac. 1097.)
    (Syllabus.)
    1. APPEAL AND ERROR — Discretion of Trial Court — Continuance. Applications for a continuance of a criminal cause are addressed -to the discretion of the trial court, and a manifest abuse of discretion must .appear -before a judgment of conviction will be reversed beca-u-se the trial court refused to continue the case.

      2. APPEAL AND ERROR — Right to Complain — Withdrawal of Evidence Upon Request. Where alleged incompetent evidence was withdrawn from the consideration of the jury on motion of defendant’s counsel, the action of the trial court in so doing was favorable to the defendant, and forms no basis for error in the appellate court.
    3. TRIAL — Instructions-—Sufficiency as a Whole. The instructions must b.e considered as a whole, and, when considered together, if they fairly and correctly state the law applicable to the case, they will be sufficient.

      Appeal from District Court, Tulsa County; Conn Linn, Judge.

    Anna Brown was convicted of the crime of manslaughter in the first degree, and she appeals.
    Affirmed.

      T. L. Wallace, for plaintiff in error.

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

Anna Brown was convicted in the district court of Tulsa county of the crime of manslaughter in the first degree for the killing of one E. L. Kimmons in the city of Tulsa on the 1st day of August, 1917, and sentenced to serve a term of 11 years’ imprisonment in the state penitentiary.

The shooting occurred in a drug store on Greenwood street known as Bryant’s Drug Store, and the evidence shows that the defendant and deceased had been sweethearts for some time prior to the killing. . The evidence from the state’s witnesses is to the effect that the defen-' dant came into the drug store a short time before the killing, and asked permission to use the telephone, and did use the same, and called somebody to “come up to Bryant’s Drug Store”; that, after using the telephone, the defendant seated hem elf at a small table' near the front of the drug store, and that shortly thereafter the deceased came into the store and was immediately shot by the defendant,. and died from the effects of the gunshot wounds in a very short time.

According to the state’s witnesses, the deceased, after he was shot, stated, “Anna, don’t kill me”; that the defendant was seen with a smoking revolver in her right hand immediately after the shot was fired; and that she kneeled down at the side of the deceased and whispered something to him, all of which the witnesses did not hear, but she was heard to say after whispering to the deceased, “That’s why I did it.”

The defendant testified that the killing was accidental, that she had procured the pistol from a friend of hers some three or four days prior to the killing for the purpose of bluffing deceased into marrying her, but that on the day of the homicide she determined to return the pistol, and was carrying it for that purpose; that she saw deceased enter a pool room a few doors from Bryant's Drug Store, and that she called him on the telephone and asked him to come over there; that after she had called the deceased she sat down by the table in the front part of the drug store and started to unbreach the pistol for the purpose of taking the cartridges out of it; that the deceased came in and saw her with the pistol and grabbed hold of the muzzle of it and tried to jerk it out of her hand; that she had hold of the handle of the pistol, and in the scuffle it was accidentally discharged and the deceased killed without any intention on her part to kill him; that after the pistol was discharged the deceased said, “Oh! Anna!” and the defendant said, “Why, you did it?” and the deceased then prayed a while, and the defendant then knelt down by him, and the deceased put hivs hands in defendant’s lap and said, “Anna, I will admit that I did you wrong; I ask you to forgive me; I caused it all myself,” and then defendant said, “I am sorry that you did it.”

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

“Q. Now, you were attempting to take the shells out of this gun? A.' I wasn’t taking them out; I was trying to unbreech the gun.
“Q. Trying to unbreech it? A. Yes, sir.
“Q. Unbreech it now (handing state’s Exhibit A to the witness). A. This is the thing I was working at the time he come in (indicating) ; I had this thing here (indicating).
“Q. Now just break it. (Witness does so.) That is what you were trying to do? A. Yes; I just started to.
“Q. And you were holding the gun up this way towards that door? A. No; I wasn’t.
“Q. But did you have the gun down this way (indicating) ? A. No; I didn’t have it that way, I had it— I don’t know exactly what way I had it, but I know I had it something in this manner.
“Q. With your finger on the trigger? A. I suppose so.
“Q. Pointing towards Kimmons? A. I wouldn’t say pointing towards Kimmons.
“Q. Towards the door where Kimmons would come in where you had seen him? A. Yes; I suppose so.”

It is first contended that the trial court erred in refusing to continue the cause for the term on the application of counsel for defendant. The main contention urged is that counsel who represented defendant in the trial of the case was not given an opportunity to properly prepare the case for trial.

The record discloses that the information upon which the prosecution was based was filed in the district court of Tulsa county on the 24th day of August, 2917, and that thereafter defendant was arraigned and entered a plea of not guilty. On the 24th of October, 1917, the cause was set down for trial for the 7th day of November following, and before said date, the' county attorney, in compliance with the Constitution, .served upon the defendant several lists of witnesses to be called in chief to prove the allegations of the information, together with the post office address of each witness. Thereafter, on the 7th day of November, 1917, when the case was regularly called for trial, defendant, being present in court, stated that she was not ready for trial because of the absence of Mr. Hunt, an attorney of the Tulsa county bar, who represented her, Mr. Hunt being at that time out of the city, and the court thereupon- appointed Mr. Monroe and Mr. Hale, members of the Tulsa county bar, to represent the defendant. Mr. Hunt thereafter appeared in court, and stated that he did not consider himself as attorney for the defendant and withdrew from the case, and the court thereupon instructed Messrs. Monroe and Hale to prepare and proceed with the cáse for the defendant, and at the request of said attorneys appointed by the court the cause was continued for 24 hours in order to give them an opportunity to prepare the case for trial. The next day when the case was called for trial, the firm of Crossland & Cross-land, attorneys of the Tulsa county bar, appeared and stated to the court that they had been retained, and desired the case to be continued for a few days so that they might make arrangements for their fee and prepare for the trial, and upon their request the court continued the case again until the 17th day of November, 1917. The case was not reached until the 19th day of November, 1917, at which time Mr. T. L. Wallace, a member of the Tulsa county bar, appeared as attorney for the defendant, and filed a motion for a continuance on the ground that he had just been called into the case by the defendant, and had had no opportunity to prepare the case for trial. The court overruled the defendant’s motion for a continuance, and Mr. Monroe and Mr. Hale, who had been appointed by the court some 12 days previous, agreed to and did assist Mr. Wallace in representing the defendant upon the trial of the case.

Applications for a continuance are addressed to the discretion of the trial court. In this case the record shows that the defendant at different times appeared in court with three different attorneys or firms to represent her, and on each occasion, except the last, the court granted these attorneys an opportunity to prepare-the defense in this case, although the court had previously thereto appointed two reputable and able attorneys of the Tulsa county bar to represent this defendant. We think that the trial court was extremely lenient in granting these various continuances upon the grounds requested. The two attorneys appointed by the court at least 12 days before the trial of the cause was commenced assisted in the defense, and the record shows that the three attorneys who represented the defendant conducted the defense in an able manner and protected the substantial rights of the defendant at every step throughout -the trial. She was not deprived of the benefit of counsel, nor is there any showing that any other evidence could or would have been produced had a further continuance been granted by the trial court. The killing occurred on the 1st day of August, 1917, and the trial was not commenced until the 19th day of November following. The defendant and her friends and relatives had over three months within which to make preparations for this trial, and after the court had granted cmtinuances on two occasions after this cause, was set for trial* at each of which times different attorneys appeared, it cannot with propriety be held that the trial court abused its discretion in refusing to grant a further continuance to permit other counsel to prepare the case for trial, especially as the court had appointed attorneys to represent this defendant, who were present in court for that purpose, and who had at least 12 days within which to prepare the case for trial, and who did (whether at the solicitation of the court or not does not appear) represent her.

The next assignment of- error relates to the alleged admission of incompetent and irrelevant evidence. This assignment is without merit, as the record discloses that on motion of the defendant’s counsel the alleged incompetent evidence was withdrawn from the consideration of the jury. No error is presented, therefore, of which the ‘defendant may complain. An. examination of the record, however, discloses that, if there was error in this respect, the error was favorable to the defendant and prejudicial to the state.

It is also contended that the trial court committed error in giving a certain instruction to the jury, but an examination of the record discloses that no objection was made or exception taken to the giving of this instruction. Further, we have carefully examined the instructions given, and are convinced that the law of the case was stated more fairly to the defendant than the evidence would warrant. In fact, the defendant was given, in the court’s instructions, the full benefit of the defense of accidental killing, although in her own testimony she admits that she had procured the revolver with which the killing was accomplished for the purpose of bluffing the deceased; that she carried the same, while loaded, around on her person and had it in that condition in a public place; and also at the time it was discharged the muzzle of the gun was pointed in the general direction of the deceased. Under the defendant’s own testimony, she was guilty of two distinct misdemeanors, and the jury was authorized to conclude from the evidence that this killing, even if not premeditated, was the direct result of the commission of a misdemeanor in pointing the pistol at the defendant, whether for the purpose of bluffing him or not.

It is undisputed that the defendant called the deceased to the place of the homicide; that she was armed with a loaded pistol, and that her feeling against the deceased was that of ill will, occasioned by the deceased’s refusal to marry her; also that she had procured the pistol for the purpose of bluffing deceased into marrying her. The state’s evidence makes out a case of murder. Under the most favorable view of the defendant’s testimony, in the light of her actions and conduct, it cannot be said that the killing was excusable, even if accidental. We think the jury .took the most favorable view of the evidence to which the defendant was entitled, that she had a fair and impartial trial, and that no reversible error appears in the record.

For the reasons stated, the judgment is affirmed.

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


source: Caselaw Access Project

author: ARMSTRONG, J.

license: Public Domain

text:
    LOGAN COLE v. STATE.
    No. A-3448
    Opinion Filed April 28, 1920.
    (189 Pac. 201.)
    (Syllabus.)
    APPEAL AND ERROR — Conviction—Sufficiency of Evidence. A judgment of a trial court will not be reversed upon appeal when the sole question raised is based upon the contention that “the conviction is contrary to the evidence,” when the record discloses competent evidence tending clearly to support the verdict of the jury and judgment rendered thereon.

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

    Logan Cole was convicted of manslaughter, and he appeals.
    Affirmed.

      J. D. McLendon and I. C. Sprague, for plaintiff in error.

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

Logan Cole was placed on trial at the February, 1918, term of the district court of McCurtain county upon a charge of murder and convicted by the jury of manslaughter in the first degree, and his punishment fixed at imprisonment in the state penitentiary for a term of four years.

Judgment was rendered by the trial court in February, 1918, and an appeal was lodged in this court August 22, 1918.

No briefs have been filed on behalf of the plaintiff in error, and no appearance was made for oral argument.

We have examined the record carefully, and find no error of law raised at the trial, or during the course thereof and assigned for review in this court. The only assignment of error set out in the petition in error which raises any question for consideration is based upon the contention that the verdict of the jury and the judgment of the court are contrary to the evidence. This contention is wholly without merit. The plaintiff in error admitted the killing and undertook to justify the same upon the ground of self-defense. The state at the trial put on testimony which was sufficient to support a conviction for murder if the same had been believed by the jury. The defendant offered testimony sufficient to warrant an acquittal, if his view of the case had been taken by the jury. The issues therefore were clearly drawn. The court in his instructions included a manslaughter charge. The jury convicted of manslaughter.

Under this state of the record, this court will not interfere with the verdict of the jury and the judgment of the trial court rendered thereon.

No error is disclosed by the record.

The judgment of the trial court is therefore affirmed.

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


text:
    WILEY GUNTER v. STATE.
    No. A-3296.
    Opinion Filed April 28, 1920.
    (189 Pac. 200.)
    RECEIVING STOLEN GOODS — Conviction—Sufficiency of Evidence. Possession of stolen property, supported by other incriminating evidence and circumstances, is sufficient to warrant a judgment of conviction.

      Appeal from District Court, Washita County; Thos. A. Edwards, Judge.

    Wiley Gunter was convicted of receiving stolen property and appeals.
    Affirmed.

      Richard A. Billups, for plaintiff in error.

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

Wiley Gunter was convicted, at the October, 1917, term of the district court of Washita county, on a charge of receiving stolen property, and his punishment fixed at imprisonment in the state penitentiary for a term of two years.

Counsel for plaintiff in error urge only one proposition as ground for reversal, to wit, that the verdict of the jury and judgment of the court are not sustained by sufficient evidence. With this contention we cannot agree. The indictment charges the plaintiff in error with receiving various and sundry articles of merchandise. A few 'of the items named were one pair of ladies’ shoes, one pair of men’s shoes, one pair of pants, five yards of broadcloth, one shirt.

The proof shows that the plaintiff in error was suspected of connection with the theft of merchandise, and that upon proper complaint a warrant was issued, and the sheriff went to the home of the plaintiff in error and searched for the property. The plaintiff in error was at home at the time the sheriff arrived, and denied the presence of stolen property, and said anything they found on the premises belonged to him. The sheriff made a diligent search of the premises. The facts indicate that he had private advice concerning the secreted property, so, after investigating all other places, he searched the chicken house and there founcl a box beneath the chicken house floor containing the stolen property and a large quantity of merchandise in addition to that set out in the complaint, including groceries, all of which were buried in the chicken house and beneath the chicken roosts. The plaintiff in error claimed all this merchandise at the .time it was discovered, and told the sheriff he had purchased it from a peddler. At the trial of the case these and other facts 'were placed before the jury. The defendant did not testify, and offered no testimony in his defense.

It is earnestly argued by counsel for plaintiff in error that the judgment should be reversed because the evidence did not establish the fact that the plaintiff in error received the merchandise as charged, knowing that it had been stolen. With this contention we cannot agree. The merchandise was not only found on the premises of the accused, but ownership claimed by him, and he endeavored to explain the possession by the contention that he had purchased the goods lawfully. He buried these groceries and wearing apparel beneath the chicken roost, where it was found after diligent search by the officers. We. are inclined to the view that an intelligent jury, in the ordinary course of its duty, would be warranted in concluding . that no innocent man who had made an honest purchase of merchandise, including wearing apparel and food, would find occasion to hide them beneath a chicken roost, and considering these things together with the fact that the property had been stolen recently and the many incrimim ating facts in connection with the possession of the property of the accused, and giving due weight to the many other circumstances disclosed by the record, we cannot say the jury was without testimony upon which to base a verdict of guilty, or that the judgment of the court was insufficiently sustained.

There being no prejudicial error disclosed by the record, the judgment of the trial court is affirmed. Mandate ordered forthwith.

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


text:
    R. B. EMERT v. STATE.
    No. A-3255.
    Opinion Filed April 10, 1920.
    Rehearing Denied May 4, 1920.
    (189 Pac. 195.)
    (Syllabus.)
    1. APPEAL AND ERROR — Review—Necessity of Prejudice — Time of Trial. The action of a trial court in causing a criminal case to be tried at any particular time is riot subject to review on appeal, unless it appears that some substantial right of the defendant in the cause is prejudicially affected thereby.
    2. APPEAL AND ERROR — Discretion of Trial Court — Change of Venue. A petition for change of venue under our law is addressed to the sound discretion of the trial court; and, unless it affirmatively appears that the court abused this discretion in such manner as to affect the rights of the party to the litigation complaining of the ruling, a new trial will not be awarded on appeal.

      3. APPEAL AND ERROR — Necessity for Prejudicial Error — Exclusion of Evidence. It is not reversible error for the trial court to refuse to permit proof of- the reputation of the place where a homicide occurred as being a bootlegging or gambling joint, when such proof does not shed any light whatever upon the issues joined.
    4. SAME — Conviction—Sufficiency of Evidence. When the proof contained in the record is such that the guilt of the accused can fairly be deduced therefrom, and no prejudicial error of law is disclosed, the verdict of the jury and judgment of the trial court will not be disturbed upon appeal.

      Appeal from District Court, Tulsa County; N. E. McNeill, Judge.

    R. B. Emert was convicted of manslaughter in. the first degree, and appeals.
    Affirmed.

      E. M. Gallagher and Robert. F. Blair, for plaintiff in error.

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

The plaintiff in error, R. B. Emert, hereinafter called defendant, was informed against for the murder of Walter Allison, convicted of manslaughter in the first degree, and sentenced to imprisonment in the penitentiary at McAlester for a term of 35 years. To reverse the judgment rendered on the verdict, he prosecutes this appeal.

The defendant filed an application for a change of venue. The court overruled the application, and he excepted. The defendant then filed an application for a continuance, which was overruled, and he excepted.

The evidence is exceedingly voluminous, and we deem it unnecessary for a proper determination of the question involved in this appeal to recite the same further than as follows: The state introduced Rose Dickerson as a witness. and the defendant objected to her testifying upon the ground that, though she was a married woman and had not been divorced, she had for some time prior to and up to within a few days of the homicide lived with the defendant as his wife, and was so known, and that hence she was his common-law wife. The court overruled the objection, and the defendant excepted, and Rose Dickerson testified: That she was a married woman and had not been divorced. That she married Frank W. Dickerson on May 3, 1913, with whom she lived about three years. That she came to Oklahoma with her said husband and remained here about six months, and then went to Elkhart, Kan., and they lived together until January, 1916, when she left him and returned to Yale, Okla. That she subsequently met the defendant when she was working in a cafe, and .about three months thereafter she came to Tulsa with the defendant as his wife, going to the Antler Rooms and registering as husband and wife. That they remained there about two weeks, and that she was introduced by the defendant as his wife. That upon the expiration of their stay in Tulsa, the defendant having been employed by the deceased to work for him at his roadhouse, which was four or five miles from Tulsa, they removed to a house near the roadhouse, and lived there until Friday nrior to the homicide, when she and defendant quarreled and defendant left. That quite often she went to Tulsa with the deceased in his car to buy groceries and to have her teeth fixed. That upon returning from Tulsa at a late hour of night with the deceased, she had been slapped by the defendant for so doing. That before defendant left, deceased came to the house in which she and defendant lived, and told the defendant “there was the rest of his, money,” and put it on the dresser for him, and the deceased took the defendant in his car to Tulsa. The next time she saw the defendant was when he killed the deceased. About 12 o’clock at night she and deceased were in the roadhouse in a room about 18 or 20 feet long and 10 or 12 feet wide, in which there were no other persons and in which a light was burning. The defendant apr proáched the room on the side from the road and back of the house, in which there was a door. That her attention was attracted when the defendant put his foot in the door. He was wearing his hat low over his eyes, and when she looked he was holding a gun in his hands. That just as he stepped upon the floor, and without,having said a word,, he shot the deceased, turned and walked south out of the door. That she went out behind him, walking southeast. She did not see either the defendant or deceased after that.

There was also evidence that between 11 and 12 o’clock the night of the homicidé, at a home near where the killing' occurred, against the consent and protest of the owner thereof, the defendant obtained the gun with which the killing was done; that imm'edately after the shooting of deceased defendant went to a nearby house and told an inmate thereof that he had shot the deceased; “that deceased had been acting familiar with his wife; that he did not shoot deceased with the intent of killing him, but to show him that he (defendant) would not be imposed upon;”' that the defendant sold the gun with which the killing was-done to this party and obtained a hat from him, fled the state, and was apprehended in Memphis, Tenn., and returned to Tulsa county for trial.

The defendant testified substantially the same as Rose Dickerson as to the life they lived, and that it was agreed by and between them that as soon as he was in condition to do so, and as soon as she was divorced, they were to marry; that he slapped her for being out late with deceased, and they had frequent quarrels in consequence of her association with deceased; and admitted that he shot deceased at the time and place testified to by her.

The defendant further testified: That on the night of the homicide he went to the roadhouse of the deceased to secure a settlement, and, upon looking in, saw two officers, Rose Dickerson, and deceased having a conversation about him; that he started to go in, but did not do so, and went across to a negro’s house near by and borrowed a-gun and returned to the roadhouse about 11 o’clock. That when he returned the two officers and deceased were there, and he looked for and did not see Rose. That he went to the house where they had lived, which was about 100 yards from the “joint,” and went in, but did not find her, and as he started out of the door he saw the two officers, accompanied by deceased, outside of the “joint.” The officers were preparing to leave, and he saw the deceased take his pistol out. That he was throwing a flashlight upon it. That the officers left in their car, and deceased returnee, to the “joint,” and he looked in and saw Rose and deceased, the deceased having a six-shooter in his hand. That he (defendant) went into the “joint” with the gun in his hand with its muzzle pointing down and his left hand by his side so as not to alarm the deceased. That when he got in deceased was standing about two feet from the south door, that deceased reached for his pi°tol and defendant told him — “don’t go after that gun — take your hands off — ” that deceased did not do so and he fired to stop him, not intending to kill him; that he did not at that time see the gun the deceased had — “he was telling him to take his hands away from it.”

There was evidence that immediately after the homicide occurred the pistol of the deceased was found near the scene of the killing, but such evidence does not definitely show whether it was found behind the counter in the “joint” or between the joint and where the dead body of deceased was lying.

The defendant, for the purpose of impeaching Rose Dickerson, offered to prove that some days prior to the homicide she was in Tulsa accompanied by defendant, and that they spent the night together, and on the next morning he purchased a ticket for her, placed her on a train, and started her to her former home; she on her examina-, tion as a witness having denied such statements as being ',rué. The court excluded the evidence, and defendant excepted.

The. defendant offered to prove the general reputation of the house in which the deceased was killed as being a gambling joint and a place where intoxicating liquors were illegally sold, without showing that such evidence was offered to impeach a witness in any wise connected with said house. The court excluded the offered evidence, and defendant excepted.

Several paragraphs of the instructions given the jury were each excepted to by the defendant.

Timely motion for a new trial was made, overruled, and exceptions saved.

The contention of the defendant that the court committed reversible error by setting and trying the case on July 24, 1917, is, in our opinion, without merit. It does not appear from the record that any right of the defendant was prejudicially affected thereby.

The defendant next complains of the action of the •trial court in denying a change of venue. In presenting a petition for a change of venue, the sound discretion of the trial court is invoked, and unless it affirmatively appears that the court abused such discretion the overruling of the petition and denying the change of venue is not reversible error.

It is not agreed that the court committed reversible error in denying a continuance. A careful consideration of the application for a continuance, including the evidence submitted in support thereof, does not disclose an abuse of discretion upon the part of the trial court in refusing "he continuance; therefore there was no error in the ruling.

The undenied, evidence is.that Rose Dickerson was a married woman, and had never been divorced; that she maintained adulterous relations with the defendant and no other, and was a competent witness against him. The weight and credibility of her testimony was a question solely for the jury.

It is insisted that the court committed reversible error by the exclusion of evidence offered for the purpose of impeaching Rose Dickerson. The offered impeaching evidence was as to immaterial matters, and the ruling of the court in this respect did not constitute reversible error.

It is also insisted that the court committed reversible error in refusing to permit the defendant to prove that the house where the homicide was committed had the reputation of being a gambling and bootlegging joint, and in support of such contention is cited Fowler v. State, 8 Okla. Cr. 130, 126 Pac. 831. The case cited does not in any wise tend to sustain such contention. In the case under consideration, the character of the place where the homicide was committed does not appear to be in any way material to any issue involved. There was therefore no error on the part of the trial court in this ruling.

We have carefully considered each of the paragraphs of the instructions given the jury of which the defendant complains, and find that neither of said paragraphs deprived the defendant of any material, constitutional, or statutory right.

It is not argued in behalf of the defendant that the evidence is insufficient to sustain the conviction had in this case. The record clearly establishes his guilt. It therefore follows that errors, if any, would not work a reversal of this case unless fundamental. Fowler v. State, 8 Okla. Cr. 130, 126 Pac. 831.

It is lastly contended that the punishment awarded the defendant is excessive. With this contention we are not in accord. The verdict of the jury and the judgment of the trial court are fully supported by the record.

No reversible error having been pointed out by counsel for defendant, and none appearing to the court upon a thorough examination of the record and all assignments of error, the judgment is affirmed.

Affirmed.

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


author: DOYLE, P. J.

text:
    L. C. COOPER v. STATE.
    No. A-3376
    Opinion Filed May 6, 1920.
    (189 Pac. 366.)
    (Syllabus.)
    JNTOXICA'IIING LIQUORS — Unlawful Possession — Sufficiency of Evidence. A conviction for possession of two quarts of whisky with intent to sell the same cannot be sustained on evidence merely showing possession by defendant, at her home; the defendant’s testimony being that she had the same for her own use.

      Appeal from County Court, Okmulgee County; Dudley C. Monk, Judge.

    L. C. Cooper was convicted of a violation of the prohibitory liquor law, and she appeals.
    Reversed.

      Beckett & Roland, for plaintiff in error.

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

The plaintiff in error was convicted in the county court of Okmulgee county on an information charging that she did have possession of two quarts of whisky with intent to sell the same, and in accordance with the verdict of the jury was sentenced to be confined in the county jail for 30 days and to pay a fine of $50. She has appealed from the judgment rendered upon such conviction.

No brief has been filed, and plaintiff in error is not represented in this court. The errors assigned question the sufficiency of the evidence to sustain the conviction.

The evidence on the part of the state is in substance as follows:

J. R. Throckmorton, deputy sheriff, testified that he had known the defendant three years; that she lived in a little two-room house on the East end of Fifth street, Okmulgee; that on the date alleged in serving a search warrant he searched her place and found two quarts of whisky.

Blaine Hill, deputy sheriff, testified that he assisted Mr. Throckmorton in searching the defendant’s house, and they found two bottles of whisky.

As a witness in her own behalf, the defendant, a colored woman, testified that she had lived seven years in Okmulgee; that she took in washing for a living and named the families that she washed. for; that her sister lived with her; that she had bought the whisky for her own use; that she had never sold whisky, and did not intend to sell any of this whisky.

When the state rested and again after the defendant testified, her counsel moved the court to advise the jury to return a verdict of acquittal, for the reason that the evidence is insufficient to support a verdict of guilty, which the court refused to do, and exceptions were reserved.

The testimony on the part of the state is insufficient to sustain the conviction. It shows only the possession of two quarts of whisky. There is no testimony in this case tending to show an intent to sell the same, and the defendant testified that the whisky was for her own use.

We are of the opinion that the verdict is not supported, by the evidence. The judgment is therefore reversed.

ARMSTRONG and MATSON, JJ„ concur.


text:
    MONROE BETTERTON v. STATE.
    No. A-3666
    Opinion Filed May 10, 1920.
    (189 Pac. 760.)
    (Syllabus.)
    1. INDICTMENT AND INFORMATION — Motion to Set Aside Information — Bias of Committing Magistrate — Time to Object. A motion to set aside an information for murder will not lie on ground that the committing magistrate had previously held an inquest on tlie 'body of tlie deceased, and was therefore biased and prejudiced against the defendant, where no objection was made and no affidavit for change of venue was filed.
    2. HOMICIDE — Murder—Conviction—Sufficiency of Evidence. In. a prosecution for wife murder, the conviction and punishment of death awarded will not be disturbed where the evidence shows, a deliberate premeditated killing without provocation.

      Appeal from District Court, Craig County; A. C. Brewster, Judge.

    Monroe Betterton was convicted of murder, and the. death penalty assessed, and he appeals.
    Affirmed, with directions as to execution of sentence.
    Monroe Betterton, charged with the murder of his-wife, Elzadah Betterton, in Craig county, on the 9th day* of July, 1919, was tried and convicted of murder, and the death penalty assessed.
    H. E. Ridenhóur was the first witness for the state. He testified:

      “I was chief of police of Vinita on the 9th day of July,, 1919, and was called to Arthur Thomas’ home on North Brown street. I found the woman lying on the front porch dead, and the defendant was sitting on the north end of the porch. I asked the defendant why he killed that woman, and he said he did not kill her. I think he told me she killed herself. I found a 32 automatic pistol in the top dresser drawer in the north room. I have that pistoL Here it is. Arthur Thomas’ house is in the shape of a T, with two rooms facing east to the street and one room behind. I found two or three 32 automatic pistol cartridge shells in the south room.”
    Dr. A. W. Herron testified:
    “I am county physician; I made an examination of the body of Elzadah Betterton and found three gunshot wounds. One bullet entered a little above and to the left of the navel and passed out on the left buttock. Another entered the right arm about midway between the shoulder „ and elbow, and entered the body. It came out just below the angle of the scapula in the back. " The other one went through the right lung and into the heart, carrying away the right auricle of the heart, and lodged between the fifth and sixth rib on the left side, and was taken out by Dr. Near.”
    Dr. C. S. Near testified that he assisted in the examination, and described the wounds in substance as stated by Dr. Herron.
    Mrs. Mamie Betterton testified:
    “I am 16 years old. Elzadah Betterton was my mother. Monroe Betterton was my stepfather. Clifford Betterton, son of the defendant, is my husband. We were married July 1, 1919. The defendant and my mother came to Arthur Thomas’ place the night before the killing. After they went to bed I heard them quarreling. The defendant hit my mother with his fist and knocked her against the table, and she ran from him into the room where we were. The next morning I went over to one of our neighbors to sew, and Mother went with me; About noon she said she was going back to Monett that day. She bundled, her clothes up and laid them on the bed in the south room and laid her hat out there, and was standing at the dresser combing her hair. I and my two little brothers were in the room, and the defendant shot her. Her back was towards him, and she turned around and hollered, ‘Oh, don’t do that any more!’ and he shot her again; then she started to run out of the house, and he just put the gun up against her and shot her again. He shot her three times, and when he shot her the last time she hollered, ‘Oh, my God!’ I ran and grabbed Mamma in my arms, and she fell down across my feet dead. He shot her with an automatic pistol. My brother Raymond is 8 years old and Ralph is 4 years old. Some one came and asked the defendant who killed her, and he said his boy did. My mother’s name was Lockwood before she married the defendant.” .
    Arthur Thomas testified:
    That the defendant and the deceased came to his house about 10 o’clock the evening before the killing, and after they went to bed he heard them quarreling, and she hollered and said he hit her on the side of her head with his fist. “I opened the door and went in there and told him to cut that out. He was making for her again, and I told him to go to bed and behave himself.” He sat up in a chair. “I am a son-in-law of the defendant. I have a 32 Colt’s automatic pistol. I put this pistol in a suit case and put some clothes in there on top of it and laid another suit case on top of it, and threw a quilt over them. Up to that time I had kept the pistol in a dresser drawer. When 1 went to work that morning he walked about a block with me and then returned. He said he was going to send that woman back to Monett, and he was going to go to work somewhere. About 12:30 I was told at the refinery that I was wanted at home. They were taking the body away when I reached there. I found a bullet in the window sash of the south room, and it came out of a 32 shell. This is the bullet.”
    Frank Page testified:
    “I live in Vinita, about 75 yards from the Thomas house. I heard the shooting. There were three shots. I ran over and found a woman lying on the porch. The defendant came out of the house and threw up his hands and said, ‘What in the name of the Lord made her shoot herself?’ something like that. I said, ‘She never shot herself.v He said, ‘Well my boy did.’ The woman was just breathing, and died in a few minutes. It was then about half past 12.”.
    Clifford Betterton testified:;

      “My age is 22 years. Monroe Betterton, the defendant, is my father. I, with my wife, was visiting my sister, Mrs. Arthur Thomas. I was on the front porch when the shooting occurred. I heard two pistol shots, and saw the deceased just before she fell. She was going out of the south door on the east porch when she fell. I ran in and found my father with an automatic pistol in his left hand. I jerked the gun out of his hand and asked him, ‘What did you mean?’ I went out the back door after my wife, and the defendant came out after m.e. I was holding the gun in my hand, and he said, ‘Where did you get that; did you take it away from her?’ When I took the pistol from the defendant he was .standing just through the middle door between the north and south room. My wife and. sister, Mrs. Thomas, were present when I took the pistol from him.”
    J. L. Stevens testified:
    “I live at Vinita. I went to the Arthur Thomas place about noon, and saw the lady lying on the porch dead. The defendant was right inside of the door when I walked up to the porch. I asked him who killed the woman, and he did not answer. He didn’t seem to be excited.”
    Raymond Lockwood testified:
    “I am eight years old. I go to school and was in the second grade. I know what it means to be sworn; if I don’t tell the truth, I would go down to the old devil. When I hold up my hand to be sworn, it means to swear to the truth. I came to Arthur Thomas’ house with Monroe Bet-terton and my mother. I saw him shoot my mother. Me and my little brother were sitting on the suit case lacing up our shoes. Monroe Betterton is the man sitting right over there. My mother was standing at the looking-glass combing her head. He shot her three times with an automatic pistol that looked like the one lying there. Mamma had her things 'on the bed ready to go to Monett and was combing her head, and he shot her.”

      On the part of the defendant Arthur Thomas testified that he was the husband of May Thomas; that she was at that time in bed sick and unable to be present.
    Flora Jane Blachert testified that she was a reporter and stenographer, and took in shorthand the testimony of the various witnesses on the preliminary hearing of Monroe Betterton held before D. C. Roper, justice of the peace, on the 28th day of July, 1919, and transcribed the same, and that the pages from 48 to 59, inclusive, were a correct transcript of the testimony of Mrs. May Thomas, as given on the preliminary hearing.
    Thereupon the state withdrew its objection, and the transcript of testimony of Mrs. May Thomas was read to the jury as follows:
    “I live on North Brown. The defendant is my father. Elzadah Betterton died at my house on the 9th day of this month. I was in the kitchen when the shooting took place. There are three rooms, a south room, north room, and west room. The shooting took place in the south room.. I heard only two shots. I saw the defendant after the shooting. He had nothing in his hand when I saw him. We had a 82 automatic pistol in the house. My father came around in the back yard and said, ‘Oh, my! I can’t live without her,’ and that is all he ever said. Tuesday night they had their little racket, and he came in and asked me- if we had a gun, and I said, ‘No; Bap a sold his gun;’ and he said, ‘Have you a razor ?’ and I said ‘No.’ That was all that was said that night. The next morning he went a piece with my husband. When he returned he said, ‘Arthur said he had not sold that gun, and I want to get the gun and take it to Monett and sell it;’ and I said, ‘I don’t care what Arthur said; the gun is not here that I know of.’ I did not know but what he would kill himself, and I could not stand the idea of him killing himself in my home. He said that morning to me: ‘Sweetheart, you and Mamie take a walk, and when you come back it will all be settled-.’ 1 never thought but what he was going to kill himself. 1 didn’t go for the walk. My husband had hid the gun in the suit case, and he said he thought he had hid it so that my father could not find it. I went to the suit case to get it, and it was gone.”
    Monroe Betterton, as a witness in his, own behalf, testified :
    “I am 48 years old. I was married to Elzadah Better-ton the 11th day of June, 1918. We lived together four or five months. I left her and went up to Purdy to my aunt’s. At that time’ we were living at Monett, Mo. I came back and we lived together about a month and a half, and I went back to my aunt’s. I was married to this woman twice. The last time on the 1st day of July, 1919. We had been divorced just one week. We came to Vinita to visit my daughter on the 3d day of July, and stayed until the 6th. Then we went back to Monett. On the 8th day of July we came back to Vinita and went to my daughter’s and stayed there that night. We did not have a quarrel. She went to Mamie’s bed and talked to her a little bit, and when she came back she commenced crying, and she kept that up until 11 or 12 o’clock. After we went to bed she j ust screamed out that she could not stand that trouble anv longer and got up. I got up with her and just took her in my arms and said, ‘Sweetheart, for goodness sake don’t be worrying; you are killing yourself and me, too.’ I really don’t know what she was worrying about. In 15 or 20 minutes she quieted down and laid down on the bed and went to sleep. I sat by the side of the bed all night. I did not strike her and pull her hair, or anything of that kind. After breakfast I went part of the way with my son-in-law and my son down towards the refinery, and asked them to speak for me for a job down there. My wife said she was going back to Monett. When I left Monett I had $10, and I gave the money to her that I had left. I didn’t shoot my wife. I was not in the room when she was shot. I was in the north room, standing in the door. There was three shots fired just as fast as a man could count almost. I ran in there. I did not know what' had happened. Mamie Betterton was standing right by the door. She had that gun and ran and shoved it into my side and snapped it twice. I took the gun away from her. I started into the north room, and met my son, and he said, ‘Give me that gun.'’ I handed it to him, and went on into the room where my daughter was and asked her where was the nearest doctor, and we went out on the porch, where my wife was lying dead. No man ever loved a woman any dearer than I loved that woman. Before that Mamie Betterton came into the room where we were talking, and my wife said, ‘Mamie, if you won’t go back to Monett with me, get ready and go with me to the depot,’ and Mamie said, T would not go with you anywhere, you darned old bitch.’ I got up and went out of the room. I stood in the north door about a minute, and the shooting took place. Those two little boys were in the room, Raymond Lockwood and Ralph Lockwood. I don’t know who shot my wife. She said several different times that she was going to commit suicide and get out of her trouble.”
    On cross-examination he stated:
    “I was married the last time in Mt. Vernon, Mo., on the 1st day of July, and the killing occurred on the 9th day of July. When Mr. Ridenhour come he asked me where the gun was, and I said, T haven’t got any gun.’ He did not ask me why I shot that woman, and I did not say to Mr. Ridenhour that she killed herself, or that the boy did it. He asked me how did it happen, and I told him I didn’t know.”
    His further cross-examination is as follows:
    “Q. Mr. Betterton, you was convicted of the crime of having murdered one wife prior to this time was you not? A. No, sir; I was not.

      “Q. Is it true or not that you were convicted and sentenced to 99 years in the pen on a charge of murder in Missouri? A. Yes, sir.
    “Q. Is it true or is it not that you were convicted in the state of Missouri of the crime of having murdered a woman and sentenced to a term of 99 years in the Missouri penitentiary? A. Well, I was not convicted of a crime at all. I pleaded guilty to that crime. It was an accident, was the way it was. It wasn’t no crime at all.
    “Q. You say you pleaded guilty to hating murdered a woman? A. I pleaded guilty to the charge; yes, sir.
    “Q. And took 99 years in the penitentiary? A. Yes, sir; I was guilty of that woman’s death, but it was an accident.
    “Q. You were paroled, wasn’t you? A. Yes, sir; I was paroled.
    “Q. Why didn’t you inform the officers who killed your wife ? A. I sure wanted to protect that girl. I did not know whether she did it or who done it. I know that she had the gun, and she snapped the gun twice at me.
    “Q. I want to ask you further if it is not true that parole expired last April? A. It did, for the truth.
    “Q. You violated that parole? A. No; I have not. That Governor issued me a full pardon the 1st day of April.
    “Q. You were pardoned the 1st day of April? A. Yes, sir; I was.”
    In rebuttal H. E. Ri'idenhour testified:
    “The only way that this automatic pistol can be snapped twice is for the shell to explode in it. That cocks the gun again. If there is another load in it you can’t snap it but once (indicating) ; now the gun is snapped once if that was loaded, and if it exploded it would throw the shell out, but otherwise you can’t snap the gun off any more unless you take it this way and cock it, and then you can snap it once more.”

      Clyde MeGary, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and W. C. HaM, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

(after stating the facts as above). The plaintiff in error, Monroe Betterton, herein referred to as the defendant, was convicted, awarded the death penalty, and was sentenced to be electrocuted for the murder oí his wife, Elzadah Betterton. The homicide was committed on the 9th day of July, 1919. The information was filed in the district court of Craig county on the 3d day of November, and on the same day, it appearing that the defendant .was unable to employ counsel, the court appointed C. MeGary as counsel to defend him; Mr. MeGary having represented the defendant in the preliminary examination. He was duly arraigned on the 4th day of November, ana on the following day entered his plea of not guilty. The case was tried at the November term, 1919. He was found guilty of murder, and his punishment assessed as stated. Motion for new trial was duly filed. The motion was overruled on the 17th day of November, and on the same day judgment of death was by said court pronounced upon him. January 23, 1920, was the day appointed for his execution. He appeals from said judgment to this court, but there has been no appearance in his behalf on his appeal. However, the importance of the case in its results has demanded and we have given careful examination and consideration to the record and all questions involved therein to ascertain whether reversible error was committed on the trial.

The first alleged error is in overruling the defendant’s motion to set aside the information.'

It appears from the record that when the case was called for trial leave wad granted to the defendant to withdraw his plea of not guilty and interpose a motion to set aside the information on the ground that the committing magistrate was disqualified from holding the preliminary examination, for the reason that he had theretofore presided and. held the inquest on the body of Elzadah Betterton, the deceased; that therefore he was biased and prejudiced against the defendant and was unable to give him a fair and impartial examination; that the defendant did not know that said magistrate had held said inquest, and therefore did not make application for a change of venue.

It is sufficient to say that the motion to set aside the information was without merit and was properly overruled.

The next assignment is that the court erred in admitting irrelevant, incompetent, and immaterial testimony, and in refusing to admit competent and material testimony offered by the defendant.

Upon a careful examination of the transcript of the testimony we have been unable to find a single ruling of the court on the admission of evidence or in the rejection of evidence upon which error could be predicated, and it appears that during the course of the trial no exception was taken to any such ruling of the court.

Another assignment of error is that the court erred in giving to the jury instructions numbered 4 and 5.

The instructions of the court have been examined carefully, and we find that the jury was fully instructed as to the presumption of innocence and their duty to acquit if they entertained a reasonable doubt of the defendant’s guilt, and we have failed to find any error in the instructions which the court gave to the jury prejudicial to the substantial rights of the defendant. It further appears 'that no objections or exceptions were taken to the instructions as given by the court, and that no instructions were requested to be given by the defendant.

The remaining assignments of error .are, in substance, that the verdict of the jury was contrary to the law and to the evidence.

Upon a careful review and considering all the evidence in the case, the conclusion which we reach is that the guilt of the defendant is established beyond a doubt, and we feel constrained to say that there is not a single palliating feature in the case which even tends to reduce the crime of the defendant below murder. It appears that the case was one of premeditated deliberate murder, as the jury very properly found, and we find nothing in the record tending to show that death is an undue punishment. Upon consideration of the entire record the court is satisfied that the substantial rights of the defendant have not been prejudiced by reason of any error of law occurring in the trial, and we cannot avoid the conclusion that the defendant had a fair and impartial trial, with every right accorded to him that the law justifies or requires. For the reasons stated, the judgment appealed from should be, and it accordingly is, affirmed.

The day appointed for the execution of the death sentence having passed owing to the pendency of this appeal, it is considered, ordered, and adjudged by this court that the judgment and sentence of the district court of Craig county be carried into execution on Friday, the 9th day of July, A. D. 1920. The warden of the penitentiary at Mc-Alester is ordered and directed to cause the sentence to he executed according to law. ,

ARMSTRONG and MATSON, JJ., concur.


author: MATSON, J.

text:
    WESTERN LUMBER CO. v. STATE.
    No. A-3346
    Opinion Filed May 11, 1920.
    (189 Pac. 868.)
    (Syllabus.)
    L MONOPOLIES — Construction of Statute — Intent. Section 1, e. 114, Sess. Laws 1913, construed, and held: The evident intention of the Legislature was twofold: (1) To prevent discrimination m selling of commfodities for the purpose of strangling or thwarting competition; (2) in the absence of competition or otherwise, to prevent discrimination in selling as between two similarly situated communities.
    2. SAME — Information—Sufficiently. For information held insufficient to charge an offense under section 1, e. 114, Sess. Laws 1913, see body of opinion.

      Appeal from County Court, Beckham County; E. G. M'cComas, Judge.

    Western Lumber Company was convicted of the offense of unfair competition and discrimination, and it appeals.
    Reversed.

      Embry, Johnson & Kidd, for plaintiff in error.

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

This is an appeal from the county court of Beckham county, wherein the Western Lumber Company, a corporation, was convicted of the offense of unfair competition and discrimination, as defined by section 1 of chapter 114, Session Laws 1913, and punishment fixed at á fine of $400.00. From the judgment rendered, an appeal has been properly perfected to this court, and several alleged grounds of error are relied upon for a reversal of this judgment.

The defendant corporation interposed a demurrer to the information in the lower court, which demurrer was overruled and excepted to. A motion in arrest of judgment on the ground, among others, that the information did not state facts sufficient to constitute a public offense, was also interposed, overruled, and proper exception reserved.

In this court it is strenuously contended on behalf of the defendant corporation that the information did not, under said .statute, state facts sufficient - to constitute an offense. The information is as follows:

“Comes now W. E. Tomme, county attorney for the said county of Beckham, in the name and by the authority of the state of Oklahoma, and information makes that one Western Lumber 'Company, late of the county aforesaid, on or about the 14th day of September, 1917, in the county of Beckham and state of Oklahoma, was then and there a corporation doing business under the laws of said state, and as such corporation had for part of its business points for general distribution of lumber, wire, and cement at the towns of Texola and Erick, in said county and state, and a distance of eight miles apart, and on the same railroad, to wit, The Chicago,' Rock Island & Pacific Railroad; that the said Western Lumber Company in the state and county aforesaid, and on the day and year aforesaid, did the» and there unlawfully and intentionally, for the purpose of destroying the competition of one H. T. Doss, who was then and there in the said town of Texola a regular, established dealer in wire and cement; that the Western Lumber Company did on the said day and year make an unfair discrimination in the prices of wire and cement in the said towns of Texola and Erick, to wit, wire in Texola $4 for 95 pounds, cement in Texola 75 cents a sack, and on the same day and year in the said town of Erick wire $5.50 for 100 pounds and cement $1.10 a sack, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state.”

Section 1 of chapter 114, supra, is as follows:

“Any person, firm or corporation, foreign or domestic, doing business in the state of Oklahoma, and engaged in the production, manufacture or distribution of any commodity in general, that intentionally, for the purpose of destroying competition of any regular, established dealer in such commodity, or to prevent the competition of any person who, in good faith, intends and attempts to become such dealer, shall discriminate between different sections, communities or cities of this state by selling such commodity at a lower rate in one section,' community or city, or any portion thereof, than such person, firm or corporation, foreign or domestic, charges for such commodity in another section, community or city, or that shall discriminate between different sections, communities or cities of this state by selling -such commodity at a lower rate in one section, community or city, or any portion thereof, than such person, firm or corporation, foreign or domestic, charges for such commodity in another section, community or city after equalizing the distance from the point of production, manufacture or distribution and freight rates therefrom, shall be deemed guilty of unfair discrimination, which is hereby declared to be a misdemeanor.”

The Attorney General has filed a confession of error, in part as follows:

“This prosecution was based upon sections 1 and 3 of chapter 114, Session Laws 1913, under which statute the gravamen of the offense is ‘selling such commodity at a lower rate. * * *’
“The information charges that the ‘defendant did make an unfair discrimination in prices. * * *’
“It is clear that under the law no offense was charged in the information.”

After a careful consideration of the information and the statute upon which it is based, the conclusion is reached that the information does not state an offense under said statute. The gravamen of the crime consists in discrimination by selling at a lower rate in one .section, community, or city, than in another section, community, or city, either for the purpose of destroying the competition of any regular, established dealer in such commodity, or to prevent the competition of any person who in good faith intends and attempts to become such dealer, or else to sell at a lower rate in one section, community, or city than in another section, community, or city after equalizing the distance from the point of production, manufacture, or distribution, and freight rates therefrom, on such commodities in the two sections, communities, or cities; in other words, the offense or offenses contained in the statutes consist primarily of the elements of discrimination in selling commodities either for the purpose of destroying or preventing competition in such commodities between similar localities, or else in the discrimination against the people of such localities by selling the commodities at a lower price in one than in the other.

The evident intention of the Legislature was twofold: (1) To prevent discrimination for the purpose of strangling or thwarting competition; (2) in the absence of competition or otherwise, to prevent discrimination in selling as between two similarly situated communities. In either event, however, the discrimination must be in the act of selling the commodity at a lower rate in one community than in the other. The information in this case does not charge the defendant company with selling either wire or cement at a lower price in either of the towns of Texola or Erick, but alleges that the defendant company established a different price in each of .these towns. It alleges no sale of either commodity at either place for any price, at anytime, for either of the purposes condemned by the statute. In the absence of such allegations, it is the opinion of this court that the information is fatally defective, and that the confession of error by the Attorney General should be sustained.

Furthermore, an examination of the evidence discloses practically an entire absence of proof to establish lower sales of the commodities wire and cement in the town of Texola than in the town of Erick, intentionally made for the purpose of destroying competition. While there is evidence to the effect that on the same day in both towns a purchase of these commodities was made at Texola at a lower price than in Erick, the proof tends clearly to show that the prosecuting witness, who was engaged in selling these commodities in the town of Texola, had previous, .to, these purchases reduced the selling price of the same commodities considerably lower than had previously been charged therefor at either of said places, and the conten-' tion of the defendant was that the reduction of the selling price of the commodities at Texola was not made until after the prosecuting witness had reduced the selling price himself, and that the reduction of the selling price on the part of the defendant company was for the purpose of meeting competition in prices theretofore established by the prosecuting witness, which under that provision of the act (the pleader intending evidently to base the information upon that- portion of the statute against discrimination- for the purpose of destroying competition) would not be sufficient to establish the offense.

While the weight of this evidence and the question of defendant’s intent thereunder were questions of fact for the determination of the jury under proper instructions of the trial court, nevertheless the reasonable inferences to be drawn from the evidence in this case must be such as to show a criminal intent to sell at a lower price for the purpose of destroying competition.

The fact that the complaining witness (being a dealer in such commodities only in the town of Texola, and therefore not amenable to the statute) first, and of his own volition, reduces the selling price of such commodities in said town, and that thereafter defendant company reduced its prices on such commodities in said town, did not of itself establish the criminal intent on the part of defendant to destroy the competition which had arisen in said town. We do- not understand the statute to be intended to prevent competition in prices, but rather to encourage legitimate competition.

The public is benefited by a healthy competition in the prices of necessary commodities, and the mere fact that a company dealing in commodities in two similarly located communities in this state makes a sale of ,such commodities at a lower price in one such community than in the other (while, if persisted in, is perhaps sufficient to make aprima facie case of discrimination against the community in which sales were made at the higher price) is not, in the absence of other evidence . showing an unlawful intent, ¿ti one sufficient to establish a discriminatory purpose to destroy competition in the place where the lower sale was made.

This court has repeatedly held that the mere possession of intoxicating liquors (in lawful quantities, at one’s residence or place of business) is, in the absence of other facts or circumstances to establish a guilty intent, wholly insufficient to sustain a conviction of unlawful possession of such liquors with intent to violate the provisions of the prohibitory liquor laws. This is a question of law.

So in this case. The proof merely of one sale of each of these commodities in both of the towns, at a lower price in one than in the other, on the same day, is, standing alone, wholly insufficient to establish the necessary ingredient of unlawful intent to destroy competition in the distribution of such commodities. Yet the jury was instructed that the unlawful intent necessary to sustain a conviction could be inferred alone from the fact of a sale knowingly made by defendant. This instruction was too broad, and it was equivalent in this case to an instruction to find the defendant guilty because it was admitted that a sale of these commodities was knowingly made by the defendant company at a lower price in Texola than in Erick; the sole contention of defendant being that there was no unlawful intention to destroy competition, but merely to meet competition. This theory of defendant should have been fairly submitted to the jury by the trial court, as under the charge attempted to be lodged against defendant such intent was a necessary ingredient to be proved in connection with the other elements of the oifense, and there was a requested instruction along this line refused.

It is the opinion of the court, therefore, that unless more substantial evidence of the defendant’s intent to make lower sales for the purpose of destroying competition can be produced on a subsequent trial than is disclosed by the evidence now before the court, it would be useless to pursue this prosecution further.

For the .reasons stated, the judgment of conviction is reversed, and the cause remanded to the trial court with instructions to sustain the demurrer to the information and for further proceedings not inconsistent with this opinion.

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


text:
    CLAUDE PRUITT v. STATE.
    No. A-3256.
    Opinion Filed March 8, 1920.
    (190 Pac. 894.)
    (Syllabus.)
    1. TRIAL — Verdict—Shooting With Intent to Kill or Do Bodily •Harm. On an information under Penal Code, first clause (section 2836, Rev. Laws), for shooting another with a pistol with intent to kill, where the instruction of the court submitted the included offense of shooting another with intent to do bodily harm, but without intent to kill, as defined by second clause of section 2844, Rev. Laws, the verdict, was, “Guilty of an assault with intent to do bodily harm, as charged in the information herein.” Held, that the verdict was responsive and sufficiently definite and certain as to the offense of which defendant was convicted, and was in effect a verdict of guilty of assault with intent to do bodily harm by shooting with a pistol.
    2. TRIAL — Informal Verdict — Time to Object. An informal verdict should have been objected to when returned, which would have called the attention of the court to its defective form and given an opportunity for its correction.

      3. HOMICIDE — Evidence—Finding of Weapons Near Scene. Evidence of the finding of weapons at or near the scene of ah assault with intent to kill, subsequent thereto, which are apparently connected with and tend to explain the crime, is admis- ' sitole.
    4. SAME — Identification of Weapon. On a trial for assault with intent to kill by shooting with a pistol, a knife, not identified as the one claimed to have been in the hands of the person assaulted when the shooting occurred, is not admissible.

      Appeal from District Court, Carter County; W. F. Freeman, Judge.

    Claude Pruitt was convicted of shooting with intent to do bodily harm, and he appeals.
    Affirmed.

      J. B. Champion and Norman & Mathers, for plaintiff in error.

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

Plaintiff in error, Claude Pruitt, was tried and convicted upon an information which in substance charged that in Carter county on or about the 7th day of January, 1917, he did then and there unlawfully, feloniously, and intentionally shoot one Monroe Mahurin with a pistol, said pistol being then and there a deadly weapon, with the unlawful and felonious intent on the part of him the said Claude Pruitt to kill the said Monroe Ma-hurin. Verdict was as follows:

“We, the jury drawn, impaneled, and =worn in the above-entitled cause, do upon, our oaths find the defendant, Claude Pruitt guilty of an assault with intent to do bodily harm, as charged in the information herein, and leave it to the court to assess the punishment.”

The court sentenced him to serve a term of two years imprisonment in the penitentiary. From the judgment he .appeals.

In order to understand the various questions raised by the errors assigned, we will briefly state the material testimony in the case.

Monroe Mahurin testified:

“I was 21 years of'age February 2, 1917, and about sundown on the date alleged I was standing in front of the drug 'store in the town of Springer. Pruitt hollered at me and said, ‘Come here a minute, Monroe; I want to see' you;’ and we turned and walked to the back end of the drug store. He asked me if I knew who broke into his house and got that quart of alcohol. I told him that I didn’t know anything about the alcohol at all. He said I was a God damn liar; that I got it myself. I told him he was a damn liar; I did not get it. I had my hands in my hip pockets at the time, and started to take them out, and Pruitt said,. ‘Come on out with it.’ I told him I didn’t have anything to come out with, I pulled up my coat this way (indicating), and turned each hip to him and Pruitt said, ‘If you did have a gun I would make you eat it.’ I told him he would not make'me eat anything. He said, ‘You can’t stand; up and come back at me after -breaking into my house; God damn you; I will kill you.’ When he made that remark I turned, looking to see who was around there. As I turned my head facing him he struck me with a gun and jabbed it that way (indicating) and shot me, I did not have a knife or a pistol, and had nothing in my pocket, but a pocket handkerchief and a shoe buttoner. The ball struck me here in the breast (indicating), and came out here in my back (indicating). After he shot me Pruitt still held his gun on me with one hand and jerked my coat away and said, ‘Let me see where I shot you,’ and then said, ‘Oh, I done that accidentally.’ When he struck me with the gun ' it knocked one of my jaw teeth loose.”

Ed Ball testified:

“I was about 15 feet from the defendant when he fired the shot. I-heard Claude say, ‘You did go in,’ and Monroe says, ‘I didn’t.’ Monroe turned around and held up his coat to show him that he didn’t have anything. I started away; then I turned around and saw the gun fire. Claude was about 3 feet from Monroe at the time.”

Bob Pierce testified:

“I was standing near the corner of the drug store porch. I heard Claude Pruitt tell Monroe Mahurin that he had broken into his house and stole some alcohol. Monroe said he didn’t do it, and Claude told him he was a damn liar; he did; and Monroe said, ‘You are a liar; I didn’t.’ Monroe was showing him that he did not have a gun by pulling up his coat. About a minute afterwards I heard the report of pistol.”

Lowell Owens testified:

“I heard Claude say to Monroe, ‘Come around here a minute; I want to show you something.’ Then I heard Claude accuse him of breaking into his house, and Monroe told him he didn’t do it. I was standing about 15 feet from them, and I walked to the front of the drug store; then heard the shot.”

J. M. Arnold testified:

“I am a merchant at Springer, I heard Pruitt and Ma-hurin talking behind the store. I went around back of the store to get some coal oil. I heard one say something about fighting the other. I was 35 feet away; it was dark. I saw one raise his hand like he was going to strike the other one — I could not tell which. Four or five seconds later I heard a pistol fire; I started to where- they were, and met Claude about half way, and Claude said, T shot Monroe; he tried to use a knife on me, and I tried to knock it off with a pistol; I was afraid he would kill me,’ and that it was an accident.”

Dr. L. D. Gillespie testified that he was called to attend Monroe Mahurin, and his examination disclosed that the bullet passed through the middle lobe of the right lung.

On the part of the defense the material testimony was as follows:

Lester White:

“I walked around there, and there was Claude Pruitt and Monroe Mahurin. Claude accused Monroe of breaking into his house, and Monroe said he was a damn liar, and Claude told him he was another one, and Monroe struck at him with something in his hand. Claude jerked out his gun to knock his lick off, and struck at him and hit Monroe on the jaw. Monroe struck at him again, and Claude struck him on the right arm with the gun, and it went off and shot Monroe, Claude said, ‘I shot him accidentally,’ and started to put out the fire on Monroe’s clothes. Monroe told him to let him alone, and I put the fire out while it was blazing.”

The cross-examination of this witness shows that he had been convicted in Carter county on a plea of .guilty of the crime of seduction.

The defendant testified:

“I teach school some, farm and handle cattle, and am engaged in the mercantile business. On returning that evening from Ardmore to my home at Springer X learned that my house had been entered in my absence by Monroe Mahurin; I went down to get a loaf of bread, and was standing on the drug store porch talking when Monroe Mahurin-walked up and spoke to me; I said to him, ‘Come around here; I would like to talk to you a minute;’ and we went behind the barber shop. I didn’t want to spring this conversation about him breaking into my house before the •crowd and embarrass him; I said to him, T heard that you entered my house while we were gone.’ He told me I was a ‘damn liar.’ I went on talking to him, directly he called me a ‘God damn liar,’ and I told him he was another. At that he came out of his hip pocket with a knife and struck at me with it. I jerked my gun and hit him on the side of the head. He came back quick, and struck at me with a knife; I struck at him and caught hfe arm, knocking the gun up, and the gun went off. I struck at him to keep him from cutting me; I didn’t want to have to kill him; his coat caught fire from the gunshot; I tried to put' the fire out, and said, ‘Did I shoot you?’ He said, ‘Sure you shot me." I told him it was an accident. I went home; saddled my horre and rode to my father’s about six miles from Springer, from there I went to see my lawyer, then I surrendered to Horace Kendall, deputy sheriff, and requested him to go and look for the knife.”

Horace Kendall testified:

“I am and have been deputy sheriff of this county for 7 or 8 years. I heard of the shooting, and went out there between 7 and 8 o’clock. There was a big crowd there, and I didn’t make an examination of the ground where the shooting-occurred. Defendant sent for me to come to his home. I went there and arrested him, and returned to Ard-more in a car with him and his counsel and put him in jail. I went back out to Springer between 11 and 12 o’clock that night, and found the knife, and kept it until I gave it to you to-day. The big blade was open when I found it.
“Counsel for the Defendant: We offer it in evidence.
“The County Attorney: We object for the reason that it is incompetent, irrelevant, and immaterial.
“The Court: I will sustain the objection at this time. (Exception allowed.)
“I went out to look for the knife that was supposed to have been dropped there, and found this knife. (The knife is again offered in evidence. Same objection. Same ruling.)”

On cross-examination he stated that he returned to the scene of the shooting the second time at the request and with Byrd Pruitt, father of the defendant.

In rebuttal the state offered the following testimony:

Ed Elmore:

“I am constable for Berwyn township. Springer is in Berwyn township. I was called to the scene shortly after the shooting occurred, and with Mr. Arnold, Mr. Gains, and Mr. Wilson searched the ground with a lantern and searchlight. It was then about half past 8 that evening. Within an hour we made another examination, Buck Garrett, the sheriff, was with us. We had a searchlight and a lantern, and searched all around looking for a weapon, and nothing was found.”

A. W. Gains, deputy sheriff, testified that he was with Mr. Elmore, and with others participated in making an examination of the ground where the .shooting occurred; that there was a big crowd there; that Buck Garrett and Horace Kendall were there; and nothing was found.

It is contended that the judgment should be reversed “because the court erred in refusing the defendant the privilege of introducing in evidence the knife found by the deputy sheriff at the scene of. the crime.” We think it abundantly settled that evidence of the finding of weapons at or near the scene of an assault with intent to kill subsequent thereto, which are apparently connected with and tend to explain the crime, is admissible. It must appear, however, that the conditions at the scene of the crime have not so materially changed as to render the evidence unreliable because of possible tampering with the conditions as they existed at the time of such assault, and that a weapon used by, or in the possession of, the person assaulted at the time of the assault is admissible when sufficiently identified.

It appears that the testimony of the witness Kendall' was not rejected. The court held his testimony admissible. In the light of his statements that he did not find anything at the scene of the crime when he first visited the place, but at the request of the defendant’s father he went there with him at the hour of midnight, and there picked up a knife, we think that the court did not err in refusing to allow the knife to be introduced in evidence.

Several assignments of error are based on exceptions taken to the instructions given by the court, and on the refusal to give two instructions requested. In criticizing the instructions given it is urged that the court “nowhere gave the defendant the benefit of being proven guilty beyond a reasonable doubt, and the defendant did not receive the benefit of the presumption of innocence.” It is a sufficient answer to the complaint made to quote the instruction given, which reads as follows:.

“To the offense charged in the information, the defendant has entered his plea of not guilty, and you are instructed that by the said plea of not guilty the defendant is presumed to be innocent of the crime charged against him, and this presumption of innocence continues with him throughout the trial and until it is overcome by competent evidence admitted by the court for your consideration.
“It is incumbent upon the state to prove every material fact necessary to the conviction of the defendant beyond a reasonable doubt, and if the state makes such proof, then the presumption of innocence with which the law clothes the defendant no longer exists.”

The instruction requested was to the effect that:

“It is immaterial whether the prosecuting witness had a knife or not. If the defendant believed, or had a right to believe as a reasonable man, that the prosecuting witness was assaulting him with a knife, then said defendant had the right to act upon appearances of danger.”

Which instruction was by the court properly refused, ■as the instructions given fairly cover the law of the case, including the defense interposed.

Finally, it is insisted that the verdict rendered is too indefinite and uncertain to ¡sustain the judgment rendered. While the verdict in the case is technically informal, it is sufficiently definite and certain as to the offense of which the defendant was convicted, and it is in effect a verdict of guilty of assault by shooting with a pistol without intent to kill,, but with intent to do bodily harm. The defendant was convicted of assault with intent to do bodily harm by shooting another with a pistol under an information charging an assault with intent to kill by shooting. The instructions given submitted the law of the offense charged, and the included offense of which the defendant was found, guilty, and the language of the verdict, “Guilty of an assault with intent to do bodily harm as charged in the information herein,” is sufficiently direct and certain, and the defendant, having failed to object to the verdict when returned, waived any defect in the 'form of the same. Simpson v. State, 16 Okla. Cr. 533, 185 Pac. 116; Coleman v. State, 15 Okla. Cr. 682, 179 Pac. 617.

A careful examination of the record has failed to disclose any error affecting a substantial right, and we are fully convinced that the defendant had a fair and impartial trial, and that the verdict of the j ury is upon the testimony a just one. The judgment of the district court of Carter county is therefore affirmed.

ARMSTRONG and MATSON, JJ., concur.


text:
    STATE v. D. F. UNDERWOOD.
    No. A-3407.
    Opinion Filed May 22, 1920.
    (190 Pac. 281.)
    (Syllabus.)
    1. INDICTMENT AND INFORMATION — Sufficiency of Information. An information charging the offense in ordinary and concise language without repetition, in such a manner as to enable a person of common understanding to know what is intended, is sufficient.
    2. PROPERTY — “Ownership” of Chattel. Ownership of a chattel denotes possession, dominion, and control over it.
    3. INDICTMENT AND INFORMATION — Using Statutory Language. Words used in a statute to define a public offense need not be strictly pursued in the information, but other words conveying the same meaning may be use'd.
    4. INDICTMENT AND INFORMATION — Certainty to a Certain Extent. The common-law doctrine of a strict construction of criminal law and all proceedings in criminal cases, and that an information should be certain to a certain intent in every particular, is not in force in Oklahoma.
    5. FALSE PRETENSES — Information—Sufficiency. For reasons holding an information sufficient as charging the defendant with having obtained certain property by false pretenses, as against a motion in arrest of judgment, see body of opinion.

      Appeal form District Court, Bryan County; Jesse M. Hatchett, Judge.

      D. F. Underwood was convicted of the crime of obtaining property by false pretenses and his punishment fixed by verdict at imprisonment for two years, and, from an order arresting the judgment, the State appeals.
    Reversed, and cause remanded, with directions to overrule the motion in arrest of judgment and pronounce judgment in conformity with the verdict.

      Chas. P. Abbott, Co. Atty., and S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.

      Hatchett & Ferguson, for defendant in error.
   MATSON, J.

This is an appeal by the state frpm an order of the district court of Bryan county arresting the judgment upon a trial in which the defendant, Underwood, was convicted of the crime of obtaining property by false pretenses, and the punishment fixed by the jury’s verdict at imprisonment in the state penitentiary for a term of two years.

The information upon which this prosecution is based, omitting the caption, is as follows:

“Comes now Chas. P. Abbott, the duly qualified and acting county attorney in and for Bryan county, state of Oklahoma, and gives the district court of Bryan county and State of Oklahoma to know and be informed that the above-named defendants, D. F. Underwood, and Frank Adams, late of Bryan county, did in Bryan county and' in the state of Oklahoma, on or about the 15th day of November, in the year of our Lord one thousand nine hundred and fourteen, commit the crime of obtaining property under* false pretenses in the manner and form as follows:
“That is to say, the defendants did in said county and state, at the date above named, unlawfully, willfully, and feloniously represent to one I. C. Tally that one D. F. Underwood was the owner of a certain good and valid note for the sum of $1,250.00, and that said note was secured by a mortgage on certain lands located in Murray county, Okla., and relying upon said representations as being true, and believing same to be true, the said I. C. Tally was then and there induced to and did part with a certain stock of goods located at Silo, Okla., in exchange for said note and mortgage, when in truth and in fact said note was bogus and was not secured by mortgage on said lands as represented and same is worthless, all of which said defendants then and there well knew, and the said representations were made designedly, fraudulently, feloniously and willfully with intent to wrong, cheat and defraud the said I. C. Tally out of the said stock of goods and the value thereof, contrary to the form of statutes in such cases made and provided, and against the peace and dignity of the state.”

Section 2694, Revised Laws 1910, is the statute upon which this prosecution was based, and reads as follows:

“Any person who, with intent to cheat or defraud another, designedly, by. color or aid of any false token or writing, or other false pretense, obtains the signature of any person to any written instrument, or obtains from any person any money or property, is punishable by imprisonment in the penitentiary not exceeding three years or in a county jail not exceeding one year, or by a fine not exceeding three times the value of the money or property so obtained, or by both such fine and imprisonment.”

No demurrer was interposed to said information in the lower court, neither was any objection made to the introduction of evidence upon the ground that the information failed to state a public oifense. The first time the sufficiency of the information was attacked in the lower court was after verdict, and upon motion in arrest of judgment, which reads as follows:

“Now comes the above-named defendant and moves the court to set aside and vacate the verdict of the jury returned in this cause and dismiss this action for the following reasons and on the following grounds, to wit: .
“Because the information filed against the defendant in this action does not state facts sufficient to constitute a public offense against the state of Oklahoma and does not state facts sufficient to constitute the offense of false pretense with which it attempts to charge the defendant.
“Of all of which the defendant prays the judgment of the court.”

Section 5791, Revised Laws 1910, provides:

“The defendant may demur to the indictment or information when it appears upon the face thereof, either:
“First. That the grand jury by which an indictment was found had no legal authority to inquire into the offense charged, by reason of its not being within the legal jurisdiction of the county.
“Second. That it does not substantially conform to the requirements of this chapter.
“Third. That more than one offense is charged in the indictment or information.
“Fourth. That the facts stated do not constitute a public offense.
“Fifth. That the indictment or information contains any matter which, if true, would constitute a legal justification or excuse of the offense charged, or other legal bar to the prosecution.”

Section 5799, Id., provides:

“When the objections mentioned in section 5791 appear from the face of the indictment or information, they can only be taken by demurrer, except that the objection to the jurisdiction of the court over the subject of the indictment or information, or that the facts stated do not constitute a public offense, may be taken at the trial, under the plea of not guilty, and in arrest of judgment.” ¡

Section 5939, Id., provides:

“A motion in arrest of judgment is an application on the part of the defendant that no judgment be rendered on plea or verdict of guilty, or on a verdict against the defendant on a plea of former conviction or acquittal. It may be founded on any of the defects in the indictment or information mentioned as grounds of demurrer unless such objection has been waived by a failure to demur, and must be before or at the time the defendant is called for judgment.”

In Rhea v. U. S., 6 Okla. 254, 50 Pac. 993, it is said:

“The defendant below, so far as the record in this court discloses, neither moved to set aside the indictment nor demurred thereto, and has therefore waived all objections to the same, except that it does not state facts sufficient to constitute a public offense, or to give the court jurisdiction of the subject-matter.”

It follows from the foregoing statutes and the deci•sion of this court in the Rhea Case that, if the information upon which this prosecution is based is sufficient to state a public offense (as that is the only statutory ground upon which it was attacked in the lower court by motion in arrest of judgment), then the order of the trial court arresting the judgment should be reversed; otherwise, sustained.

Counsel for defendant have filed an elaborate brief basing the contention that the information is wholly insufficient to charge a public offense upon the sole ground:

“It is nowhere alleged in the information that the defendant obtained said stock of goods, any benefit therefrom, or any part thereof.”

In the case of White v. State, 4 Okla. Cr. 146, 111 Pac. 1012, this court said:

“If the indictment was defective this matter should have been called to the attention of the trial court by proper motions before the defendant entered his plea. This is the reason why the defendant is allowed by statute one day in which to plead. If the defendant enters his plea and waits until the introduction of the evidence to object to the sufficiency of the indictment, the objection should be overruled if by any * * * intendment the indictment can be sustained.”

The decision in the White Case has been uniformly followed by the later decisions of this court, and states the correct rule in this jurisdiction by which the sufficiency of the information should be measured on a motion in arrest of judgment.

The second subdivision of section 5738, Revised Laws 1910, provides:

“The indictment or information must contain: * * - A statement of the acts constituting the offense, in ordinary and concise language, and in such a manner as to enable a' person of common understanding to know what is intended.”

Section 5744, Id., provides:

“The words used in an indictment or information musí be construed in their usual acceptation, in common language, except words and phrases defined by law, which are to be construed according to their legal meaning.”

Section 5745, Id., provides:

“Words used in a statute to define a public offense need not be strictly pursued in the indictment or information, but other words conveying the same meaning may be-used.”

Section 5746, Id., provides in part:

“The indictment or information is sufficient if it can be understood therefrom: * * *
“Sixth. That the act or omission charged as the offense is clearly and distinctly set forth in ordinary and concise language, without repetition and in such a manner as to enable a person of common understanding to know what is intended.
“Seventh. That the act or omission charged as the offense, is stated with such a degree of certainty, as to enable the court to pronounce judgment upon a conviction according to the right of the case.”

The information in this case alleges that the defendant, Underwood, “Willfully and feloniously represented to one I. C. Tally that he, Underwood, was the owner of a certain good and valuable note for the sum of $1,250.00, and-that said note was secured by a mortgage on certaL lands located in Murray county, Okla.” The allegation that the said Ujnderwood was the owner of such a note and mortgage was equivalent in meaning, according to lexicographers, to an allegation also that the said Underwood was possessed of such property. Thomas v. Blair, 111 La. 678, 35 South. 811. Ownership of a chattel denotes dominion and control over it.

The information further alleges that—

“The said Tally, relying upon said representations as being true, and believing same to be true, was then and there induced to and did part with a certain stock of goods located at Silo, Okla., in exchange for said note and mortgage.”

Webster defines the word “exchange” to mean:

“To part with, give or transfer to another in consideration of something received as an equivalent; usually followed by ‘for’ before the thing received; to barter, swap, as ‘to exchange horses,’ ” etc.

The allegations quoted above are equivalent in the opinion of this court, according to their meaning in common language, to an allegation directly charging that the said Underwood obtained from the said Tally, by means of such representations as aforesaid, a certain stock of goods located at Silo, Okla., in exchange for the said certain note and mortgage, of which he, the said Underwood, was then and there the owner and possessed. If such language would in its ordinary and usual acceptation be understood to mean that the defendant in fact obtained the stock of goods, the information was sufficient in that respect to comply with the requirements of the statutes 01 this .state, even if a construction could be placed upon s? language to the contrary, because it has never been the rule in this state that indictments or informations are require to contain that degree of certainty to a certain intent in particular which was formerly required, and now is, in some other jurisdictions where a strict construction prevails as to criminal pleadings.

In Price v. State, 9 Okla. Cr. 359, 131 Pac. 1102, it is held:

“The common-law doctrine of a strict construction of criminal law and all proceedings in criminal cases, and that an indictment should be certain to a certain- intent in every particular, is not in force in Oklahoma.”

Also, it has been held that if an indictment or information “states the facts in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what is intended, it is sufficient.' Star v. State, 9 Okla. Cr. 210, 131 Pac. 542; Deen v. State, 7 Okla. Cr. 150, 122 Pac. 941.

Counsel for the defendant have cited several authorities in which points closely related to the one raised in this case were considered, and in which decisions the courts of other states have held indictments and informations containing allegations similar to those in this information insufficient to charge the offense of false pretenses, on the ground that such allegations do not sufficiently charge that the defendant obtained money or property, which is the gravamen of the offense under the statutes.

But in view of our statute above cited, such decisions cannot be held controlling upon this court, which has in the past followed more liberal and reasonable rules than obtain in the states from which such decisions come. Our statutes applying to the construction to be given indictments or in-formations are clearly antagonistic to the idea that such pleadings are to receive a strict technical construction. The court is of the opinion that the information above quoted sets forth the offense of false pretenses in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what is intended, and that the offense is charged with a sufficient degree of certainty to enable the court to pronounce judgment upon the conviction according to the right of the case. Viewed' from such a standpoint, the information is sufficient, ana the trial court erred in sustaining the motion in arrest of judgment.

For the reasons stated, the order of the district cour-of Bryan county, sustaining the motion in arrest of judgment, is reversed, and the cause remanded, with instructions to the trial court to overrule the motion in arrest of judgment and to pronounce judgment upon the defendant in conformity with the verdict returned, and for further proceedings in accordance with law.

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