author: BAREFOOT, P. J.

text:
    In re JACK FOREMAN.
    No. A-10598.
    May 31, 1945.
    (159 P. 2d 274.)
    Sid White, of Oklahoma City, for petitioner.
    Randell S. Cobb, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for respondent.
   BAREFOOT, P. J.

Petitioner, Jack Foreman, has filed in this court his petition for habeas corpus, alleging that he is at present confined in the State Penitentiary at McAlester. That his imprisonment is by reason of a judgment of the district court of Seminole county, Oklahoma, entered on the 1st day of November, 1928. A copy of the judgment and sentence is attached to the petition.

As a basis for the release of petitioner by habeas corpus, it is alleged:

“That said judgment and sentence is wholly void, in that it attempted to imprison this petitioner for the offense of murder for a term not provided nor permitted by law.”

The Attorney General has filed a response on behalf of the Hon. R. B. Conner, warden of the State Penitentiary. In this response, it is alleged that defendant was charged with the crime of murder, which includes manslaughter in the first degree and manslaughter in the second degree, as included offenses. That the jury found the defendant guilty of manslaughter in the first degree and requested the court to assess the punishment.

In compliance with this request, the court entered judgment and sentenced the defendant to serve 25 years in the State Penitentiary. In the judgment and sentence, which was in printed form and evidently prepared by the court clerk, it is stated, “informed against for the crime of murder” and “the court does now hereby adjudge and sentence the said Jack Foreman for the offense by him committed.” It is by reason of the above terms in the judgment and sentence that petitioner contends that the judgment is void because it does not state that the defendant was found guilty and sentenced for manslaughter in the first degree, and not for murder.

We have examined the authorities cited by petitioner, and are of the opinion that this contention cannot be sustained. Under the charge of murder defendant could be convicted of manslaughter in the first degree as an included offense. A copy of the verdict of the jury is attached to the response filed by the warden, and it is as follows: (Omitting the caption)

“We, the jury, drawn, impaneled and sworn in the above entitled cause, do upon our oaths find The Defendant Jack Foreman guilty of manslaughter in the first degree as charged in the information herein and request the court to assess the punishment.”

The judgment and sentence states: “for the offense by him committed.” This clearly shows that petitioner was sentenced for manslaughter in the first degree in conformity with the verdict of the jury. The punishment for murder, under the statute, is death or imprisonment in the State Penitentiary for life. The punishment could not, therefore, have been for murder.

We find that there is not sufficient irregularity in the judgment and sentence to justify the remanding of this case for resentence by the trial court.

For the reasons above stated, the petition for habeas corpus is denied.

JONES, J., concurs. DOYLE, J., not participating.


source: Caselaw Access Project

author: JONES, J.

license: Public Domain

text:
    GRADY COATS v. STATE.
    No. A-10416.
    May 31, 1945.
    (159 P. 2d 271.)

      Jerome C. Sullivan, of Duncan, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Grady Coats, was charged by information filed in the district court of Stephens county with the crime of assault with intent to kill; a jury was waived, the defendant was tried, found guilty of the included offense of assault with a dangerous weapon, and was sentenced to serve one year in the State Penitentiary, and has appealed.

The defendant is alleged to have committed an assault upon L. L. Losson, chief of police of Comanche, at a time when the chief, of police was allegedly attempting to place the said defendant in the city jail, upon complaint having been made to him that the defendant had had an altercation with one Armstrong.

It is contended by the defendant that the attempted arrest by Officer Losson was unlawful, therefore, the officer was a trespasser and the defendant was justified in using whatever means was necessary to free himself from the unlawful trespass. Yates v. State, 73 Okla. Cr. 51, 117 P. 2d 811, and Collegenia v. State, 9 Okla. Cr. 425, 132 P. 375, are relied upon by defendant to support this contention.

L. L. Losson, the prosecuting witness, testified that he was the chief of police of the town of Comanche. That he arrested defendant about 9 or 10 o’clock, p. m., at a domino parlor on March 25, 1942. That he did not have any warrant for defendant’s arrest. That one of the businessmen of the town of Comanche, by the name of Armstrong, had come to him and advised him that the defendant had come into his place of business and threatened to “cut Armstrong’s guts out.” On objection being made by counsel for defendant, the court did not allow the witness to detail the things that had been related to him by Armstrong which the defendant allegedly had done in Armstrong’s place of business. At the time of the arrest of the defendant, he had been drinking intoxicating liquor and was showing its effects. The defendant proceeded with Losson to the city jail. At the entrance to the jail, Losson took the keys to the jail from his pocket and started to unlock the jail door. At that point, the defendant seized Losson’s gun and stepped back about three feet. Losson made a lunge for the defendant with a billy club and struck defendant over the head with the club. That defendant fired Losson’s gun twice — one of the shots going through Losson’s hat, and another hitting Losson in the foot. That he struck the defendant several times with his billy club and the defendant hit him over the head twice with Losson’s gun. That the defendant finally turned and ran. The officer further testified that he went to the hospital for medical attention and received medical treatment daily for six weeks for the injuries he sustained in the altercation. That when defendant first grabbed the officer’s gun, he stepped back and said, “-- you, I’ll just kill you.” That when defendant made this statement, the officer lunged at him and defendant fired the gun once. That he then attempted to fire it a second time, but the gun jammed. That he heard the trigger dick. That defendant then fired a third shot.

Dr. A. J. Weedn, a witness for the state and who OAvned the Weedn Hospital, testified that he treated the witness Losson for the Avounds he received for about two months. That Losson had a laceration on his scalp about three inches long. That he also had other injuries, including a hole in his foot allegedly caused by a bullet.

M. D. Armstrong testified that he operated a cafe and service station in Comanche. That on the night of March 25, 1942, the defendant Avas in his place of business. That he had trouble with the defendant. When asked to detail the nature of the trouble which he had with the defendant, counsel for the defendant objected and the court sustained his objection. The court did alloAv him to testify that he related what had happened t/> Losson, the chief of police.

The defendant testified that when Losson came to the domino parlor where he was playing dominoes, he stated, “Come on, Dug, let’s go.” That he asked Losson what he wanted him for, and Losson stated, “Fighting and jumping on that boy up on the corner.” That defendant paid the proprietor for the game of dominoes, and started to the city jail with Losson. That on the way to the jail, the witness Losson asked, “Why did you draw a knife on that boy?”, and the defendant replied, “I didn’t draw any knife.” That when he said this, Losson called him a “lying son-of-a-bitch”, and struck him over the head with his pistol. That Losson struck him several times with the pistol before he could grab it. That while they were scuffling over the gun, it went off a couple of times. That he was grabbing for the gun to keep the witness from striking him with it. That he did not grab the gun Avith the intention of shooting Losson, but to keep the Avitness Losson from shooting him. That after he grabbed the gun, Losson struck him with a black jack and he struck Losson on the head Avith the gun in self-defense. That he finally knocked Losson on the ground Avith the gun and after doing this, he threw the pistol away and left. That he Avas bleeding badly. That he was taken to the Patterson Hospital that night, Avhere his head was dressed. On cross-examination, the defendant admitted a former conviction for the crime of larceny and that he had served a term in the Penitentiary because of said conviction. He further testified that he Avas not trying to prevent Losson from taking him to jail when the altercation occurred, but that the trouble all started because Losson struck him over the head Avith a gun when he denied having pulled a knife on Armstrong. The witness was then asked the folloAving question:

“Q. Were you drunk or Averen’t you? to which he answered, “I don’t remember.”

Several questions were then asked the defendant about whether he was drinking that night, making trouble in general, and cursing officers, to which the defendant either answered “No,” or stated, “I don’t remember.”

The other witnesses that testified both for the state and the defendant described the nature of their respective' wounds.

The witness Stewart testified that he was the officer who arrested the defendant the night of the altercation at defendant’s home. That the defendant was bloody and had been drinking. That he could smell liquor on his ■breath.. That defendant went with him and showed him where Losson’s gun was laying by a telephone post near the city jail.

22 O. S. 1911 § 198 provides the law pertaining to arrests by a peace officer without a warrant as follows:

“A peace officer may, without a warrant, arrest a person:
“1. For a public offense, committed or attempted in his presence.
“2. When the person arrested has committed a felony, although not in his presence.
“3. When a felony has in fact been committed, and he has reasonable cause for believing the person arrested to have committed it.
“1. On a charge, made upon reasonable cause, of the commission of a felony by the party arrested.”

In Yates v. State, supra, it is held:

“No officer may arrest a person without a v>rarrant for a misdemeanor, unless the misdemeanor is committed in the presence of the officer; and any officer making an arrest, without a warrant, for a misdemeanor not committed in Ms presence is a trespasser who has no right to detain the person sought to be arrested.”

In the Yates case, the undisputed facts showed that a misdemeanor warrant had been issued for Yates for a misdemeanor allegedly committed some time previous to his arrest. The arresting officer did not have the warrant. Yates was committing no offense in the presence of the officer and refused to accompany him to jail, unless the officer would procure a warrant for his arrest.

In the instant case, counsel for defendant objected to the witness Armstrong relating the acts committed by defendant at his place of business. For that reason, we do not know whether the defendant committed a felony therein. It does appear from some of the answers that were given by the defendant himself in his testimony that he is alleged to have drawn a knife on Armstrong and threatened to cut him. Just what else was said and done by the defendant on that occasion is not disclosed. When counsel for defendant made an issue of the question as to whether the witness Losson had a lawful ground for the arrest of the defendant, the court should have allowed the witness Armstrong to have related what occurred in his cafe between himself and the defendant. Defendant may not object to the state’s making a showing as to the ácts complained of, allegedly committed by defendant as a basis for his arrest, and then, later, contend before this court that no crime had been committed which would justify the arrest of the defendant without a warrant.

In the fourth subdivision of 22 O. S. 1941 § 198, supra, it is provided that a peace officer may arrest a person without a warrant on a charge made upon reasonable cause of the commission of a felony by the party arrested.

In addition to the question as to whether a felony had been committed by the defendant, authorizing his arrest without a warrant, there is some testimony that defendant was under the influence of intoxicating liquor to such an extent as might have justified his arrest for being intoxicated in a public place.

There are other facts which distinguish this ease from the Yates case. In the instant case, according to the testimony of both defendant and the officer, the defendant started peacefully on his way to the jail with the officer. The alleged assault did not occur because of a protest which the defendant was making to the purported improper arrest without a warrant. The defendant did not interpose as his defense that he was resisting an unlawful trespass against his person when he struck the blow and fired the shot which caused the injuries to the officer. His contention was that the officer had started the affray by striking him over the head with his pistol and that he, the defendant, performed the acts which he did in his own necessary self-defense to prevent the officer from either killing him or inflicting serious bodily injuries on him.

A jury was waived and the cause was tried to the court. The injuries sustained by the defendant were almost as serious as those sustained by the officer, and although defendant’s story conflicts with the testimony of the officer, we are somewhat impressed by the argument presented by the defendant’s counsel as to the truthfulness of this testimony, still, this conflict in the evidence presented an issue for the determination of the trial court. He saw the nature of the wounds which were inflicted, he heard the testimony of the witnesses and saw their demeanor on the witness stand, and it is not within the province of this court, under such circumstances, to interfere with the verdict.

The judgment of the district court of Stephens county is accordingly affirmed.

BAREFOOT, P. J., concurs. DOYLE, J., not participating.


text:
    OLEN GROUNDS v. STATE.
    No. A-10429.
    May 31, 1945.
    (159 P. 2d 275.)

      Utterback & Utterback, of Durant, for plaintiff in error.
    Randell S. Cobb, Atty., Gen., Jess L. Pullen, Asst. Atty. Gen., and Alan B. McPheron, Sp. Co. Atty., of Durant, for defendant in error.
   BAREFOOT, P. J.

Defendant, Olen Grounds, was charged in the district court of Bryan county with burglary in the second degree, after having been convicted of the crime of burglary in the second degree in three other cases; was found guilty by the jury, and his sentence assessed by the court at 12 years in the State Penitentiary. From this judgment and sentence he has appealed.

In his brief, counsel for defendant sets out six assignments of error, and thereafter states:

“The alleged error committed by the court in overruling the motion for new trial includes and covers the errors of the court which we desire to present here, and which prejudicially affects the rights of this defendant.”

The motion for new trial is on the ground of newly discovered evidence.

On the night of October 8, 1942, R. W. Harrison, a deputy sheriff of Bryan county, drove his car to a place called “Snug Harbor,” near the river, in Bryan county. He was there about 20 or 30 minutes, returned to Durant, and later went to Bokchito. The next morning he discovered that the lock to the trunk of his ear had been broken, and that a wheel, tire and tube were missing therefrom. Later that morning the tire and tube were found in defendant’s car, at his place of business in Durant, but the wheel was never recovered.

Cliff Keirsey and Volly Ware, both deputy sheriffs of Bryan county, searched the place of business of the defendant in the city of Durant the morning of October 9, 1942. They found the tire and tube stolen from Mr. Harrison’s car locked in the turtle back of defendant’s car.

It is undisputed that the defendant, his wife, mother-in-law and sister-in-law were at Snug Harbor during the evening of October 8, 1942.

Defendant testified that he went to Snug Harbor on the night of October 8th as testified by his mother-in-law, Mrs. Mattie Riley. That after his wife, mother-in-law and sister-in-law went inside, he discovered that he had a flat tire and changed it, and put the wheel and casing between the seats of the car, and not in the back from where the spare had been taken. This evidence corroborated Mrs. Riley’s testimony that he placed a wheel and tire in the car, while at Snug Harbor.

His defense was that after they returned home the night of October 8th, his brother-in-law, Marion Joe Bil-ton, approached him at his place of business, and offered to sell him a used tire. That he refused to buy it because of its condition, but gave Joe $1.50 at that time. That the following morning Joe Bilton and another boy came to his place of business in Durant with another tire, which was later identified as the tire stolen from Mr. Harrison’s car, and offered to sell the same to him. He refused to buy the tire, and Joe asked him to let him have $2 on the tire, and he would return and redeem it. He did this, and when Joe did not return by 11 o’clock that morning, defendant placed the tire in the turtle back of his own car, and it was there that the officers found it. Defendant testified that he offered to give. Joe Bilton $50 if he would admit that he stole the tire. Joe Bilton was a witness for the state, and denied having delivered the tire to the defendant.

We have not stated all the circumstances which the jury had a right to consider in arriving at their verdict. Evidently they did not believe the story told by defendant. The testimony of the witnesses for the state, one of them the mother-in-law and one the brother-in-law of the defendant, together with other circumstances, were such as fully justified the jury in finding the defendant guilty. Hamilton v. State, 42 Okla. Cr. 159, 274 P. 1092; Donahue v. State, 38 Okla. Cr. 87, 250 P. 179; Stilwell v. State, 18 Okla. Cr. 10, 192 P. 253.

After a careful consideration of this case, we are of the opinion that the court did not err in overruling the motion for new trial because of newly discovered evidence.

Under the well established law in this state, this is a question within the sound discretion of the trial court, and the facts here presented do not justify a finding that this discretion has been abused.

The affidavit attached to the motion is made by J. F. Bilton, the father of Marion Joe Bilton and the father-in-law of the defendant. In the affidavit, he states that he saw his son Marion Joe Bilton and another boy talking to the defendant on the morning of October 9th and saw them deliver a tire to defendant, but he did not hear any of the conversation between them. J. F. Bilton lived in Durant, and had talked with the defendant, his son-in-law, with reference to this ease numerous times. To grant a new trial upon such evidence as this as newly discovered testimony would be establishing a principle that would make it almost impossible to secure a conviction that would be sustained on a motion for new trial.

Taking into consideration the value of the property alone, the judgment and sentence of 12 years in the penitentiary might be considered excessive; but the record reveals that the defendant had previously pleaded guilty to burglary, second degree, in three cases in Bryan county, and was sentenced to serve two years in each case, the sentences to run concurrently; that during his term he escaped and received a six months sentence therefor; and that he had been convicted in Texas on a charge of robbery with firearms. From this record we do not find that justice requires a modification of this judgment and sentence.

The judgment of the district court of Bryan county is affirmed.

JONES, J., concurs. DOYLE, J., not participating.


text:
    GILBERT ARTHUR GALLAGHER v. STATE.
    No. A-10419.
    June 6, 1945.
    (159 P. 2d 562.)

      Jerome Sullivan and Brown & Cund, all of Duncan, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Gilbert Arthur Gallagher, was charged in the district court of Stephens county with the crime of murder; was tried, convicted of manslaughter in the first degree, and sentenced to serve 25 years in the State Penitentiary, and has appealed.

The defendant shot and killed his neighbor, C. L. Hood, early in the afternoon of July 17, 1942, in the yard of the Hood home. Hood was 64 years of age. On the morning of the day of the homicide, Peggy Ree Gallagher, 16-year-old daughter of the defendant, came to the Hood premises to get some peaches. The deceased accompanied her to the orchard. Later, when Peggy Gallagher returned to her home, she told her mother and father that the deceased had made suggestive immoral statements to her while she was in the orchard with him. The defendant and his wife borrowed a shotgun from a neighbor, drove over to the Hood home where Hood was sitting on the porch reading a newspaper.

The wife of the deceased testified that when the defendant and Mrs. Gallagher came to their home, the defendant stated to deceased, “Tell your wife what occurred between you and Peggy Ree in the orchard or I’ll shoot your-brains out.” That her husband had a newspaper and a pair of eyeglasses in his hand and as he was standing there not saying a word, the defendant shot, killing her husband instantly.

The defense interposed was that of temporary insanity and self-defense. In connection with the plea of self-defense, the defendant testified that when the deceased came down off the steps of the porch and started towards him, he had a paper in his left hand and was holding his right hand as if he had a gun behind the paper. That he thought the deceased had a gun. That deceased suddenly turned his body to the right as if to shoot the defendant and defendant fired because he thought his life was in danger.

The sufficiency of the evidence is not questioned, so it is not necessary to give a more detailed statement of the facts.

It is first contended that the court committed reversible error in his instructions to the jury in refusing requested instructions by the defendant. The defendant requested the following instruction:

“You are instructed, gentlemen of the jury, that it is the duty of each and' every member of the jury in.this case to decide the issues presented for himself, and if, after consideration of all the evidence in the case and the instructions of the Court on the law, and from consultation with his fellow jurors, there is a single juror who has a reasonable doubt of defendant’s guilt, it is his duty under his oath, to stand by his conviction and favor his verdict of not guilty, so long as he entertains such doubt.”

This identical instruction was discussed at length in the case of Frazee v. State, 79 Okla. Cr. 224, 153 P. 2d 637, 643. After reviewing many decisions from other jurisdictions, Ave held in that opinion that the refusal to give such requested instruction was not reversible error. In the body of the opinion, it is stated:

“It is the duty of jurors to reason together and harmonize their discordant views where possible. A juror should not consent to a verdict Avhich he thinks is contrary to the evidence out of a mere deference to his fellow jurors. Yet, he may consider whether the doubt which he entertains is a reasonable one which makes no impression on the minds of others equally honest and equally intelligent with himself, who have heard the testimony out of which the doubt arises and he may properly change his vieAvs because of this consideration. In other words, he can properly doubt the correctness of his own opinion when it is not concurred in by his fellow jurors, and may Avithout a \riolation of his oath, consent to a verdict, Avhich he, if he were acting alone, would not render.
“While the court might have, in his discretion, given the requested instruction, yet, his refusal to do so is not error. The majority of the decided cases so hold. Such instruction undoubtedly has a tendency to appeal to an obstinate juror, and the jury room is no place for pride of opinion or obstinancy for the reason that it is the duty of the jurors to discuss the evidence in a spirit of fairness and candor with each other and with an open mind toward the views of their fellow jurors.”

The trial court gave a sufficient statement of the law when he instructed the jury that their verdict must be unanimous and that unless all could agree, no verdict could be returned.

The defendant further contends that the court erred in the instruction which he gave to the jury in connection Avith the defense of temporary insanity. The instructions which Avere given are the same as were given in the case of Roe v. State, 17 Okla. Cr. 587, 191 P. 1048. The Roe case was a well-reasoned opinion which analyzed the statutes on insanity as a defense in criminal cases and reviewed the various decisions of this Court prior to that time. The instructions which were given by the trial court were approved and that decision has been followed by many later decisions of this court. Tittle v. State, 44 Okla. Cr. 287, 280 P. 865; Arms v. State, 49 Okla. Cr. 34, 292 P. 76; Merrick v. State, 56 Okla. Cr. 88, 34 P. 2d 281; Kennemer v. State, 59 Okla. Cr. 146, 57 P. 2d 646; Ex parte Gilbert, 71 Okla. Cr. 268, 111 P. 2d 205.

The record is so lacking in any proof of defendant’s insanity that the court would have been entirely justified in refusing to give any instruction on insanity. In the defendant’s testimony, he relied altogether upon his plea of self-defense.

Under the record, the court was also justified in giving an instruction on manslaughter in the first degree.

Several witnesses testified to the good reputation borne by the defendant in the community where he resided, as a peaceable, law-abiding citizen. On cross-examination of one of these witnesses, a school teacher, counsel asked:

“Q. I am asking you if it was not generally discussed up in that community that he was drunk and intoxicated at the schoolhouse last Christmas? Mr. Sullivan: Comes now the defendant and objects to this line of examination, unless counsel is in good faith in asking the questions and expects to offer proof of same. Court: Yes, sir. Objection will be sustained unless you expect to prove it. * * * Mr. McCuistion: I am not asking anything that I am not in good faith about.”

Counsel then proceeded to inquire about the alleged drunkenness at the schoolhouse to which the witness answered, “I heard that Mr. Gallagher had had a drink.”

On cross-examination of the witness Kent, Chief of Police of Marlow, the following questions were asked:

“Q. I will ask if you didn’t yourself receive a complaint up there in Marlow one time and looked for the defendant. A. I looked for the defendant. Q. You looked for the defendant? A. No, sir. Mr. Sullivan: We now ask counsel if he is in good faith in asking these questions and if not, not to ask those questions. Mr. MeCuistion: If they will permit I will prove it. Q. You know Dr. McLain up there? A. Yes, sir. Q. Did you hear about the trouble he had with Dr. McLain? A. No. sir. Q. You didn’t hear Dr. McLain call the police there and ask that somebody come there, it might have been you? A. No, sir. Q. Never heard that to this day? A. No, sir, if he had I believe I would have heard it. Q. You never talked to Dr. McLain about it? A. No, sir.”

Counsel contend that this examination was improper and base their objection upon the ground that the state did not attempt to offer witnesses in rebuttal to prove the truthfulness of questions which they had asked on cross-examination and which had been denied. That this conclusively showed that such questions were not asked in good faith.

In the cross-examination of a witness called to testify to the defendant’s good reputation as a law-abiding citizen, it is permissible to ask the witness on cross-examination if he had heard of various specific acts of the defendant inconsistent with such reputation. Stouse v. State, 6 Okla. Cr. 415, 110 P. 271; Johnson v. State, 54 Okla. Cr. 143, 16 P. 2d 263; Bond v. State, 53 Okla. Cr. 224, 11 P. 2d 200; Carroll v. State, 24 Okla. Cr. 26, 215 P. 797.

It is improper for the cross-examiner to inquire of a witness concerning alleged acts of the defendant which are creatures of the examiner’s imagination and which did not occur, for the purpose of leaving the impression with the jury that his reputation is bad. The examiner should act in the utmost good faith and should be severely reprimanded by the trial court if found guilty of bad faith in his cross-examination of the witness along this line. The extent of such cross-examination is ordinarily a matter in the sound discretion of the trial court. However, it would be improper for the state, over the objection of counsel for the defendant, to offer in evidence proof of specific acts of the defendant about which inquiry is made, where such acts are denied. These alleged acts are collateral to the issue and would come under the general rule of law that upon the trial of one accused of crime, proof of the commission of other crimes are not admissible against the defendant. These are collateral to the main case and, if the witness denies ever having heard of these specific acts about which inquiry is made, then the state may not prove that such acts were actually committed. We have carefully read all of the examination of the Avitn esses in connection with this contention of counsel and we find nothing which would indicate that the prosecution was in bad faith in making the inquiries about which the objection is made.

The defendant next complains of certain alleged misconduct of the jury after the final submission of the case. At the hearing on the motion for a new trial, evidence was introduced in support of this assignment of error. These witnesses testified that on the day the case was finally submitted to the jury, the jury retired for deliberation and remained in the county court room considering the case until about 10 p.m. There were two bailiffs in charge of the jury. As the jurors left the courtroom to go to their jury room to retire for the night, one of the jurors asked permission of one of the bailiffs to speak to bis wife wbo was standing in tbe corridor just outside of the courtroom. There were very few spectators in the courthouse at that time. Three or four of them saw one' of the jurors speak to a woman and they so testified. However, the state showed that the juror in question lived in the country and merely spoke to his wife in the presence of the bailiff about taking care of the livestock at their farm. Nothing was mentioned about the case on trial. The other jurors were standing four or five feet away, waiting on the juror to speak to his wife. The conversation did not last more than a minute.

It was also shown that as the jurors started down the stairway that one of them happened to think that he had left his overcoat in the room where they had been deliberating. The bailiff stopped the jury on the stair-' way and one of the bailiffs went back to the room after the juror’s overcoat. This bailiff hollered back to the jury that he could not find the coat. The juror whose coat was missing, started up the stairs towards the other bailiff but was restrained by the remaining bailiff and admonished that he could not leave. About that time, the bailiff who had gone to the courtroom returned with the juror’s overcoat which he had found. Witnesses for defendant testified that they saw one of the jurors standing at the turn of the stairs about five or six feet from the other jurors and that spectators passed him as they were going down the stairway. However, the proof on behalf of the state refuted the fact that any spectators passed and showed that the juror had only started back up the stairway when he was halted by the bailiff and told that he could not leave the groups of jurors who were waiting on the stairs for the other bailiff to return.

In Wilcox v. State, 69 Okla. Cr. 1, 99 P. 2d 531, 532, it is stated:

“Where the proof shows that the jury is permitted to separate after the case has been finally submitted,, the defendant is entitled to the presumption that such separation has been prejudicial to him, and the burden is on the prosecution to show that no injury could have resulted therefrom to the defendant.”

However, it has been held that permitting a juror to answer a proper telephone call from his family is not such a separation as is contemplated by the statute, 22 O. S. 1941 § 857 (Lemke v. State, 56 Okla. Cr. 1, 32 P. 2d 331), nor the permitting of a juror to be taken to a toilet on the floor below the jury room (Welborn v. State, 70 Okla. Cr. 97, 105 P. 2d 187), nor where the jurors sleep in two different rooms where there is a bailiff in each room (Tillery v. State, 23 Okla. Cr. 226, 214 P. 198).

Under the facts herein, there was no separation of the jury as contemplated by the statute. Furthermore, the proof in connection with this question conclusively shows that there was no prejudice resulting to the defendant by reason of this alleged separation.

It is our conclusion, upon consideration of the entire record, that the defendant has had a fair and impartial trial and that the judgment of the district court of Stephens county should be affirmed. It is so ordered.

BAREFOOT, P. J., concurs. DOYLE, J., not participating.


text:
    EDWARD McMURTRY v. STATE.
    No. A-10510.
    June 6, 1945.
    (159 P. 2d 567.)

      Harold McArthur, of Tulsa, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Dixie Gilmer, Co. Atty., of Tulsa, for defendant in error.
   BAREFOOT, P. J.

Defendant, Edward McMurtry, was charged in the district court of Tulsa county with the crime of robbery wth firearms, was tried, convicted and sentenced to serve a term of 15 years in the State Penitentiary, and has appealed.

Defendant, being unable to make bond pending his appeal, is now confined in the State Penitentiary at Mc-Alester, and for this reason his case has been advanced.

The only contentions of defendant for reversal of this case are that the testimony of the accomplice is not corroborated in the manner prescribed by law; and that the venue was not properly proven.

This case is the outgrowth of the robbery of V. R. Dick of the sum of $1,200, in Tulsa county, on May 11, 1943. It is necessary to give a short statement of the evidence.

The prosecuting witness, Y. R. Dick, lived in Kaw City, Kay county, Okla. He had been in business there, and sold his store in March, 1943, for the sum of $2,400. Tn the early part of May following, he and his wife went to Muskogee to visit, and with the view of buying some kind of business. On this trip, the witness carried $1,200 of the money received from the sale of his store. This money was in $100 bills, and was carried in a truss strapped about his body. The other $1,200 was left in Kaw City. The defendant, Edward McMurtry, was a cousin of the prosecuting witness, and the witness and his wife spent the night at the McMurtry home in Muskogee. Witness told defendant he was interested in buying some kind of business, and defendant suggested a “beer joint,” and took him to see it. After looking at this business, witness told defendant he was not interested in buying it. During these negotiations, defendant asked the prosecuting witness if he had the cash to purchase a business. He was insistent about knowing this, and Mr. Dick finally showed him the money, and how he carried it in the truss.

After spending the night in Muskogee, the prosecuting witness and his wife left, going to Tulsa, and the defendant accompanied them. They spent the night in Tulsa, at the home of Mr. Dick’s parents, and the next day returned to Kaw City, taking the defendant with them. While in Tulsa the prosecuting witness looked at a shoeshop, and discussed the purchase of the same with the defendant. They made another trip to Tulsa on Friday of that week, and prosecuting witness told the defendant he was going back to Tulsa the first of the week to purchase the shoeshop.

On May 10th which was Monday, the prosecuting witness and his wife returned to Tulsa, taking the entire $2,400 with them, $1,200 in the truss, and the other $1,200 in a billfold. They went to the home of Mr. Dick’s parents in West Tulsa. On the morning of May 11, 1943, prosecuting witness and his wife got in their car to go down town for the purpose of closing the deal and purchasing the shoeshop. Witness backed his car out in the alley, and drove down the alley to the street, and as they slowed down to enter the street some man, whom they did not know, jumped on the side of the car, which was a sedan, opened the back door and got in, saying, “I want to ride to town with you.” The prosecuting witness looked around, and the man was pointing a pistol at him, and told him to “just keep this rolling like the way you are going and nobody will get hurt.” The man told him, “Just keep her on your side of the road. You know how to drive this car — just one move out of you and I will kill you.” He directed them where to drive, and. they drove out of the city, and drove to a bargate, and then on about a mile and a quarter where the man ordered witness to stop the. car. During this drive the wife of prosecuting witness asked the man if it was money that he wanted, and that if it was, she had $35 or $40 in her purse she would give to him. He answered, “Lady, I don’t want your money.”

When the car was stopped, the party ordered prosecuting witness out of the car, and told his wife to “stay there in the car and not to try to do anything.” He then directed the prosecuting witness to a place in the timber about 100 yards from the car and out of sight of Mrs. Dick, and told him to, “Get up on that rock and take your clothes off.” Witness removed his clothes, but kept the truss on, and the man said, “Get that belt off, I want that.” He then told witness to “go up there and sit down by that tree,” and “don’t you look around or turn your head for 45 minutes, or I will kill you.” He then told the witness, “I am going to take your clothes and hide them — you will find them but it will take you a long time to do that.”

Prosecuting witness sat by the tree five or ten minutes, and when he heard no sound, he looked around and not seeing anyone, got up and went to a house, told the lady what had happened, and called the officers. He later recovered the truss from the officers, but the money was gone. Thereafter he recovered $416 from Earl Allen and Junior Cole, two of the parties to the robbery.

When ordered out of the automobile, witness had slipped the billfold containing the $1,200 out of his hip pocket and his wife slipped it up her coat sleeve, and later hid it in the car. After he had stopped the car, and before being compelled to get out, prosecuting witness saw an automobile parked on a hill about three-quarters of a mile away, and while he was calling the officers he saw the car leave the place where it was parked. He could not testify that the party who robbed him was in the car, because of the distance.

Mrs. Julia Dick, the wife of the prosecuting witness, fully corroborated the testimony of her husband, and stated that the robber forced her husband to leave the car at the point of a gun, and took him into the timber where she could not see them. She remained in the car. From where she was, she could see an automobile parked on a hill-side about half a mile distant. The robber, who was later identified as Junior Cole, came back to the automobile and told her that he only got about 60 cents from Mr. Dick, and said, “Now, I want your money.” She gaye him the money in her purse, about $45. He told her not to look at him, and not to even look around when he left, but after he had been gone a few minutes she turned around, and saw him going west, in the direction of the parked car. She saw the car move in about the time it would take for one to walk from where she was to the parked car. The car came toward where she was sitting in the car to the intersection, and turned north toward Ponca City and Kaw City. When asked how near to her the car came, her answer was, “Oh, I would say three blocks, anyway.” She testified that it was a “gray looking car.” She remained in the car until her husband returned with the deputy sheriff. The keys to the car had been taken by the robber.

Earl Allen, who was serving a term in the penitentiary for his participation in the robbery, testified as a witness for the state. He being an accomplice, it is contended that his testimony was not corroborated in the manner prescribed by law.

Allen testified that he lived near Kaw City in May, 1943, and was running a truck farm. That in the early part of May, and the day before the robbery of Mr. Dick, he was driving from his home to Ponca City, and met the defendant, Edward McMurtry, and Junior Cole, walking south on the highway north of Ponca City, about 2:30 or 3 o’clock in the afternoon. He went on to Ponca City, and as he returned he again saw them walking on the highway, and saw them turn toward Kaw City. It was raining and he stopped and picked them up. They asked him not to drive through the streets, and he asked them if they -yvere “hot,” and they told him they were not, that they were going over there to kill some time. He took them to his home, arriving there about 5 p.m.. Later, the witness and Junior Cole drove over to Shidler to see a brother of Allen, and returned to the Allen home before dark. Junior Cole told witness what they were there for, and after their return the witness, Edward Mc-Murtry and Junior Cole had a conversation with reference to robbing Mr. Dick. They told witness Mr. Dick Avas supposed to have $1,200 cash, and was carrying it in a truss. It was agreed that they Avould rob him, and the money would be divided three ways. Mr. Dick lived over the store, in EMav City, and all three of. them drove up there after dark, but the Dick car was not there. They inquired of a neighbor, and learned that Mr. Dick had gone to Tulsa, and Junior Cole, who had made the inquiry, obtained his address in Tulsa, but the defendant looked at it, stated that he knew where he Avould be, and destroyed the address. Witness told them he was going to Tulsa the next day, but they decided to go that night, and the three of them drove to Tulsa, arriving there after midnight, and spent the remainder of the night in a hotel. The Avitness and Junior Cole occupied one room, and the defendant a room just across the hall. Defendant obtained the hotel rooms. It ivas arranged that they would rob Mr. Dick the next day. They got up early and had breakfast, and drove out past the place where defendant said Mr. Dick Avould be staying, and saw his ear in the yard. They then drove on out in the country, and located a place where Junior Cole Avould take Mr. Dick and rob him, and where the witness and defendant would park nearby and pick him up after the robbery was committed.

They then-returned to Tulsa, and parked about halt a block from Avhere the Dick car Avas parked. In a very short Avhile they saAV Mr. and Mrs. Dick come out and enter the automobile, and start doAvn the alley, and Junior Cole ran doAvn and entered the Dick car, as testified to by Mr. and Mrs. Dick. Witness furnished the automatic pistol to Junior Cole. The Avitness and defendant followed the Dick car, and Avaited about 400 yards distance until Junior Cole came to his car and said, “I made it all right.”

Junior Cole gave Avitness $320, three $100 bills and one $20 bill. He did not see the defendant and Junior Cole divide the balance, as he Avas driving the car, and testified, “I Avas driving pretty fast.” Junior Cole told him he got $1,000. Witness drove to Highway 18 south of PaAvnee eight or ten miles, let the defendant and Junior Cole out of the car about 10:30 or 11 o’clock in the morning, and they started Avalking south, and Avitness Avent on to Shidler, and to Kaw City, and home. They used Earl Allen’s car, a “bluish gray” Plymouth.

On cross-examination this Avitness testified to his serving a sentence in the State Penitentiary and to having been a drug addict, but claimed he had been cured Avhile in the penitentiary.

Among other Avitnesses for the state Avhose testimony corroborated that of the Avitness Allen was Mrs. E. E. Torbett, of Tulsa. She testified that she operated the DeLuxe Hotel, in Tulsa, and of the defendant coming to her hotel on the night of May 10, 1943, after midnight, and renting tAvo rooms. That two other men came and occupied one of the rooms. She was unable to identify the other two men, but saw them come in some time after midnight. She assigned the defendant to room No. 4, and the other two men occupied room No. 5. She saw defendant early the next morning, but did not see the other two men. She cleaned up the rooms, and knew that both beds had been slept in.

Two witnesses, Bill Roubideaux and J. C. Lee, testified for the state. Roubideaux testified to seeing the defendant and another man walking about eight miles north of Ponca City on the highway going to Raw City on May 10th, between 12 o’clock and 1 p.m. Mr. Lee testified to seeing the defendant about 2 o’clock in the afternoon on May 11th and again that evening at the home of Mr. Johnson, defendant’s father-in-law, and that defendant introduced him to a man, and he believed his name was Junior Cole.

Jimmie Moore testified that he was working for Earl Allen on his truck farm near Raw City on May 10, 1943. That he saw the defendant and Junior Cole when they came with Earl Allen to his home during the afternoon of Monday, May 10, 1943. That Earl Allen and Junior Cole left soon thereafter to go to Shidler, and defendant remained there until they returned, about 5:30 or 6 o’clock in the afternoon. That the three of them left together in Allen’s “grayish black” Plymouth automobile about 10 p.m., and that Allen returned home alone the next afternoon.

Defendant did not take the witness stand, and did not offer any evidence in his behalf.

The statute with reference to the necessity of corroboration of the testimony of an accomplice is 22 O. S. 1941 § 742, and is as follows:

“A conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely show the commission of the offense or the circumstances thereof.”

This statute has been so often construed by this court that it is unnecessary to cite or quote from the many cases decided. All of the cases are cited in the annotated statutes, and may be referred to by those interested.

The rule followed by this court is stated in the case of Perry v. State, 74 Okla. Cr. 234, 125 P. 2d 219, where it is said:

“A conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.
“This does not mean a separate and complete proof of a crime, but only that there should be some evidence of material facts in addition to the testimony of the accomplice tending to connect the defendant with the commission of the crime charged.”

See also Rice v. State, 60 Okla. Cr. 398, 64 P. 2d 1240; Henson v. State, 69 Okla. Cr. 273, 101 P. 2d 1060; Spivey v. State, 69 Okla. Cr. 397, 104 P. 2d 263; Wilkins v. State, 70 Okla. Cr. 1, 104 P. 2d 289; Rowland v. State, 75 Okla. Cr. 164, 129 P. 2d 609; Edson v. State, 77 Okla. Cr. 100, 139 P. 2d 198; Plaxico v. State, 78 Okla. Cr. 353, 148 P. 2d 201; Hamilton v. State, 79 Okla. Cr. 108, 152 P. 2d 119; Anderson v. State, 79 Okla. Cr. 194, 153 P. 2d 245.

In the instant case the court instructed the jury as a matter of law that the witness Earl Allen was an accomplice, and that it was necessary for the jury to find that his evidence had been corroborated before they conld consider the same.

An examination of the record as above set out reveals that the testimony of the witness Earl Allen was abundantly corroborated, and this by a number of disinterested witnesses. It is unnecessary to point out the testimony, as it clearly appears from the statement of the evidence heretofore made.

The contention that the evidence was insufficient to show that this crime was committed in Tulsa county cannot be maintained. The evidence of several of the witnesses, and especially of the prosecuting witness, was sufficient to sustain the venue as being in Tulsa county.

An examination of the record reveals that the defendant had a fair and impartial trial, and the judgment of the district court of Tulsa county is affirmed.

JONES, J., concurs. DOYLE, J., not participating.


text:
    Ex parte FRANK SNYDER.
    No. A-10564.
    June 13, 1945.
    (159 P. 2d 752.)

      Robert Sherman, of Oklahoma City, for petitioner.
    Randell S. Cobb, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for respondent.
   JONES, J.

This is an original proceeding in habeas corpus instituted by the petitioner, Frank Snyder, also known as Frank Pavlench, to secure his release from confinement in the State Penitentiary at McAlester.

The verified petition filed herein, to which the Attorney General has filed a demurrer, alleges in substance the following facts:

That the petitioner was convicted in the district court of Cleveland county of the crime of robbery with firearms and was sentenced to serve a term of 20 years in the State Penitentiary. That on May 21, 1934, the Honorable W. H. Murray, Governor of Oklahoma, granted a parole to said petitioner, upon the following terms and conditions, to wit:

“First: That the said Frank Pavelench, Number 27861, shall abstain from the use and handling of intoxicating liquor and narcotics in any form; he shall not gamble nor in any manner conduct or indulge in a game of chance; he shall not carry firearms nor other dangerous weapons under any circumstances; he shall avoid all evil associations, all improper places of amusement, all pool, billiard and domino halls, obey all the laws and in all ways conduct himself as a moral and upright citizen.
“Second: That the primary condition for grantng this parole to Frank Snyder (real name Frank Pavelench) Number 27861, is that he shall, immediately upon his release, leave the said State of Oklahoma, and shall remain out of said state for a period of twenty years from the date hereof; and if the said Frank Pavelench, Number 27861, shall return to the State of Oklahoma during the period of time above mentioned then this parole shall be automatically revoked and all sheriffs and other peace officers in the State of Oklahoma are hereby directed and ordered to aprehend him wherever he may be found, take him into safe custody and convey him to the Oklahoma State Penitentiary at McAlester, Oklahoma, where he will serve out that portion of his sentence unfinished, according to the original sentence and judgment of Court; and the officer apprehending the said Frank Pavelench, Number 27861, shall be entitled to compensation for such services. And it is further understood by the said Frank Pavelench, Number 27861, that the Governor may revoke this parole for the violation of one or more of the conditions hereof, or for other causes by him deemed sufficient; that the said Frank Pavelench, Number 27861, agrees to accept and comply with the terms and conditions of the above parole agreement, and to make a monthly report to the Pardon and Parole Attorney; State Capitol, Oklahoma City, Oklahoma, as to whereabouts, occupation and earnings.”

That petitioner gave his written acceptance to said parole and was released from imprisonment under the terms and conditions thereof. That petitioner, after his release upon said parole, went to the State of Ohio, where he was later convicted of the crime of robbery with firearms. That after said conviction, on May 1, 1935, E. W. Marland, without hearing any evidence, arbitrarily revoked said parole. That on November 25, 1939, Russell W. Smith, judge of the La Porte superior court, issued a writ of habeas corpus releasing the petitioner from incarceration in the State of Ohio. However, by reason of the revocation of his parole by E. W. Marland, Governor of Oklahoma, the petitioner was returned to the State Penitentiary at McAlester, where he has since been confined.

That no opportunity to meet or contest any charge preferred against him before the Governor of Oklahoma was ever afforded to petitioner. That by virtue of the terms of said parole, banishing the said petitioner from the State of Oklahoma, the State of Oklahoma lost jurisdiction over the person of said petitioner and that, therefore, the Governor had no right, authority, or power to revoke said parole.

Two issues are presented by the petitioner: (1) Has the petitioner the right to have a hearing to determine whether he has violated the conditions of his parole before the Governor may issue a revocation? (2) Did the State of Oklahoma lose jurisdiction over the person of the petitioner when he was banished from the state?

The first question must be answered in the negative. This court in the recent case of Ex parte Edwards, 78 Okla. Cr. 213, 146 P. 2d 311, reviewed the authorities pertaining to the right of a convict to a hearing before the Governor may revoke his parole, and in that case, we laid down the following rule of law:

“Where convict was granted and accepted a parole expressly providing that Governor might revoke same and remand party to prison for violation of conditions or for any other reason by him deemed sufficient, the Governor could order convict remanded without notice to him and without opportunity to be heard.”

In the body of that opinion, the following language is used:

“The convict was not forced to accept the parole. He had the option of accepting or rejecting it under the terms and conditions therein imposed. When he did give his written acceptance of the parole with the condition inserted therein that it could be revoked for any cause deemed sufficient by the Governor, he became bound by such terms and may not question the motivating influence behind the revocation. Even for the grossest abuse of this discretionary power vested in the Governor the law affords no remedy. The courts have no concern with the reasons which actuate the Executive. The discretion exercised by him under the terms and conditions of the parole herein involved is beyond the control or legitimate criticism of the judiciary.”

See, also, Ex parte Horine, 11 Okla. Cr. 517, 148 P. 825, L.R.A. 1915F, 548; Ex parte Woodward, 58 Okla. Cr. 333, 53 P. 2d 288; Ex parte Collins, 32 Okla. Cr. 6, 239 P. 693.

.In connection with the second proposition, it is contended that the banishment parole is contrary to the first provision of section 29, art. 2, of the Oklahoma Constitution, which provides:

“No person shall be transported out of the State for any offense committed within the State . . . .”

This constitutional provision clearly applies to the involuntary transportation of a person out of the state, as punishment for crime. In the instant case, there was no involuntary transportation of the petitioner out of the state. The parole, with all of the conditions set forth therein, was a matter which the petitioner could accept or reject. He gave his written acceptance and, pursuant to its terms, voluntarily left the state.

In 39 Am. Jur. 576, Section 89, it is stated:

“It is a well-established rule that a parole must be accepted by the convict before it becomes effective to secure to him his liberty; that is, it is for him to elect whether he will accept the parole with its conditions or reject it and remain in prison.”

The authorities from other jurisdictions seem to hold that a condition inserted in a pardon or parole that the convict shall leave the state and never return is good. 39 Am. Jur. 562, Sec. 68; 60 A.L.R. 1415; Ex parte Hawkins, 61 Ark. 321, 33 S.W. 106, 30 L.R.A. 736, 54 Am. St. Rep. 209; Ex parte Marks, 64 Cal. 29, 28 P. 109, 49 Am. Rep. 684; State ex rel. O’Connor v. Wolfer, 53 Minn. 135, 54 N.W. 1065, 19 L.R.A. 783, 39 Am. St. Rep. 582; People v. Potter, N.Y., 1 Edm. Sel. Cas. 235; Ex parte Lockhart, Ohio, 1 Disney 105, 12 Ohio Dec. 515; Commonwealth v. Haggarty, Pa., 4 Brewst. 326; State v. Barnes, 32 S. Car. 14, 10 S.E. 611, 6 L.R.A. 743, 17 Am. St. Rep. 832.

The case of Ex parte Ford, 46 Okla. Cr. 247, 287 P. 1057, is similar in many respects to the case at bar. In that case, the Governor of Oklahoma issued an instrument designated as a parole, which provided, among other things, that the convict should be delivered to the State of Kansas. Petitioner contended that the instrument signed by the Governor, although designated as a parole, was in law a pardon and operated as a full discharge of the remainder of the term for which the petitioner was sentenced. In disposing of this contention, the court held:

“The instrument designated as a parole, signed by the Governor and attested by the secretary of state, providing for the release of the convict named from the State Penitentiary, and containing the conditions enumerated in the opinion, which among others provides that the convict shall be delivered to certain authorities of the State of Kansas and shall there report to certain other authorities, which conditions are expressly agreed to by the convict by indorsement thereon, is not by said condition divested of its character as a parole.”

In Ex parte Edwards, supra, it is stated:

“The Governor of the state has the power to annex to a pardon or parole any condition precedent or subsequent, provided it be not illegal, immoral, or impossible to be performed.”

The condition inserted in the parole that the petitioner shall immediately upon his release leave the State of Oklahoma and remain out of the state for a period of 20 years from the date of said parole is not immoral, is not impossible of performance, and is not contrary to any statute of the State of Oklahoma. The petitioner having accepted the parole with all of the terms and conditions therein inserted, he may not now in this proceeding question the discretion exercised by the Governor in revoking the parole.

The petition for writ of habeas corpus is denied.

BAREFOOT, P. J., concurs. DOYLE, J., not participating.


text:
    Ex parte JAKE SHERMAN.
    No. A-10591.
    June 13, 1945.
    (159 P. 2d 755.)

      Robert H. Sherman, of Oklahoma City, for petitioner.
    Randell S. Cobb, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for respondent.
   JONES, J.

This proceeding in habeas corpus raises the same issues of law reviewed and discussed in the case of Ex parte Snyder, 81 Okla. Cr. 34, 159 P. 2d 752, this day decided.

The petitioner, Jake Sherman, was given a parole in November, 1934, wherein it was provided, among other conditions, that the prisoner should immediately upon his release leave the State of Oklahoma and remain out of the state forever.

The petition further alleged that the prisoner, in accordance with the terms of the parole, went to the State of Indiana, where he committed a crime, was convicted, and served his sentence. That while there, his parole was revoked by Governor E. W. Marland, and, at the expiration of his sentence, he fought extradition, but was returned to the State of Oklahoma where he has since been confined in the State Penitentiary.

While the facts are not identical with Ex parte Snyder, supra, the questions presented involve a discussion of the same principles discussed in the Snyder case. The conclusion therein reached disposed of the contentions of the petitioner, Jake Sherman.

The petition for writ of habeas corpus is accordingly denied.

BAREFOOT, P. J., concurs. DOYLE, J., not participating.


text:
    HOEY DECKARD v. STATE.
    No A-10583.
    June 13, 1945.
    (159 P. 2d 756.)
    W. C. Peters, of Tulsa, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Dixie Gilmer, Co. Atty., of Tulsa, for defendant in error.
   BAREFOOT, P. J.

Defendant Hoey Deckard was charged in the district court of Tulsa county with the crime of stealing an automobile, was tried, convicted, and sentenced to serve a term of 12 years in the State Penitentiary. From this judgment and sentence he has appealed.

Defendant, being unable to give bond pending appeal, is imprisoned in the State Penitentiary, and for this reason his case has been advanced.

Defendant was unable to employ counsel, and the court appointed Mr. W. C. Peters, public defender, of Tulsa county, to defend him, and he has prosecuted this appeal.

The only assignment of error necessary to be considered is that the judgment and sentence is not sustained by the evidence, and is excessive.

The testimony in this case, as disclosed by the record, shows that Richard Lloyd Jones, of Tulsa, was the owner of a 1939 Packard sedan automobile, Oklahoma tag No. 2-2001. That Mr. Jones was not in the city of Tulsa, or the State of Oklahoma, on August 15, 1944, at the time the above car was stolen; that he did not know and had never heard of the defendant, and did not give his consent or permission for defendant to use his automobile.

Capt. H. G. Barnett testified that he was a guest in Mr. Jones’ home on August 15, 1944, and on that evening saw the automobile there, and that some of the colored help drove it to the K C Auto Hotel and parked it. He testified that he saw the car the next morning at the American garage.

Mrs. Nell Snider testified that she was working at the K C Auto Hotel on or about August 15, 1944. Her identification of the defendant was as follows:

“A. I saw this fellow and I knew he was a stranger and I got up to see where he was going and at that time there was some one came to the window and I waited on the customer at the window, but I did not see him go out.”

After some questioning by the county attorney, she stated:

“Q. (By Mr. Gilmer) All right, Mrs. Snider, did you see the Jones car brought in that night? A. I did. Q. And when, in your best judgment, after the Jones car was brought in, did you see this man come into your auto hotel? A. I would say two hours, something like that. Q. And this man you describe is the defendant in this case, is that correct? A. That is the fellow I saw, yes, sir. Q. Did you later learn his name? A. I don’t know his name now. Q. Is he the man you see seated by counsel here at the table? A. Beg your pardon? Q. Do you see him in the courtroom right now? A. I see him there.”

She testified that she did not see the defendant drive the car out, but she did see him at the premises just prior to the time the car was taken.

It is noted that the party who brought the automobile to the K C Auto Hotel and the party who received it were not placed on the witness stand by the state.

The information charged that the motor number of the car was No. 0501915B, but the tag number was not alleged in the information.

Elizabeth Ann Poshek testified that she lived at No. 29 South Zunis, in Tulsa; that she saw the defendant about 10:30 the night of August 15, 1944; that two cars came driving down by her home going west, one a Chevrolet and one a Packard. She heard the driver of the Packard car, which was following the other, swear and tell the driver of the first car to go over to the curb, which he did. The driver of the Packard jumped out of his car and ran to the back of the Chevrolet, and the driver of the Chevrolet opened the door and a girl jumped out and ran away. There were two other parties in the Chevrolet car, and she heard the driver of the Packard say, “If any of you make one move I will kill the whole bunch of you.” She testified that she saw the license number of the Packard car, and it was 2-2001, and she called the police and they came to the scene, and she told them she would file a charge for speeding and running a stop line.

Edward L. Redd testified to the same facts as Mrs. Poshek. He lived in close proximity to the Poshek residence, and was at this residence at the time, as his aunt was living there. He testified that the Packard came back by the house several times, “at an enormous rate of speed.”

James R. Lang, a Tulsa police officer, testified that he was called to First and Zunis and talked to Mrs. Poshek, and she gave them the tag number of the Packard car, and they soon found it parked across the street from the Circle Bar. They parked for 40 or 45 minutes “spotting” the car. They saw the defendant come out of the bar, enter the car, and back out and turn south. He was stopped and arrested by the police officers after he had gone several blocks. They asked defendant who owned the car, and his reply was that he had borrowed it from a fellow in the bar to go after a pint of whisky; that the man had given him $5, and he was going to take the whisky back to the Bar. The officer testified that defendant did not know the name of the man from whom he said he borrowed the car and for whom he was to get the whisky. He also testified that it was a Packard car, having an Oklahoma 1944 license tag No. 2-2001.

Defendant was charged under 21 O. S. 1941 § 1720, which is as follows:

“Any person in this state who shall steal an automobile or other automotive driven vehicle shall be guilty of a felony, and upon conviction shall be punished by confinement in the State Penitentiary for a term of not less than five (5) years, nor more than twenty (20) years.”

We have examined many Oklahoma cases cited under the annotation of the above statute, and involving the charge of stealing an automobile. It is unnecessary to cite the cases, for the reason that they may be found in the citation in the statute. Many of them have some similarity to the instant case. In almost all of the cases, the judgment of conviction was affirmed. In some of the eases, judgment and sentence was modified to five years, the minimum punishment prescribed by the statute; this depending on the facts of the individual case.

The defendant in the case at bar did not take the witness stand, or call any witnesses in his behalf. The record does not, therefore, reveal whether the defendant had a previous record of having been convicted and served a term or terms in the penitentiary. Nor does the record disclose the age of the defendant. If the record had disclosed that the defendant had not before been convicted, and that he had previously had a good reputation, we would not hesitate to modify the sentence in this case to the minimum of five years in the penitentiary. The facts in the instant case are not very strong. They do show that the defendant entered the K C Auto Hotel in Tulsa and stole the Packard automobile of Bichard Lloyd Jones, and the same was found in his possession by the officers, and he did not tell the truth as to how he obtained possession of the same. His story was not only unbelievable, but untrue. The jury undoubtedly came to the conclusion that the defendant had not only stolen the car, but was making an attempt to leave the city, and possibly the state at the time of his arrest.

We have often held that the possession of recently stolen property is not in itself sufficient to authorize a conviction for the crime of larceny. But that the possession of recently stolen property creates an inference of fact, which, together with other facts and incriminating circumstances, is sufficient to sustain a conviction. Miller v. State, 54 Okla. Cr. 17, 13 P. 2d 599; Bidwell v. State, 28 Okla. Cr. 1, 228 P. 614; Chrisman v. State, 22 Okla. Cr. 52, 209 P. 656; Ballard v. State, 68 Okla. Cr. 39, 95 P. 2d 239.

As to the judgment and sentence being excessive in this case, the record does not give sufficient facts for this court to come to the conclusion that the same is excessive. If the facts justify, this matter can be called to the attention of the Pardon and Parole Board of this state, as they have ample facilities for an examination into the true facts.

Finding no error in the record, the judgment of the district court of Tulsa county is affirmed.

JONES, J., concurs. DOYLE, J., not participating.


text:
    J. BOB DEES v. STATE.
    No. A-10435.
    June 20, 1945.
    (160 P. 2d 406.)

      I. L. Cook, of Atoka, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., E. J. Broaddus, Asst. Atty. Gen., and W. H. Parker, Co. Atty., of Atoka, for defendant in error.
   BAREFOOT, P. J.

Defendant, J. Bob Dees, was ■charged in the district court of Atoka county with the crime of manslaughter in the first degree, was tried, con- ' victed and sentenced to serve a term of seven years in the State Penitentiary. From this judgment and sentence he has appealed.

The only assignment of error relied upon by the defendant is that the verdict of the jury was not supported by sufficient evidence, and that the judgment and sentence is contrary to law.

The defendant is charged with killing his wife, Norma Dees, on July 27, 1942, by means of “a certain dangerous weapon and blunt instrument, the exact description of which is unknown to informant.”

• On the date alleged, the defendant and his wife went fishing with his father and mother, and in the late afternoon returned to the home of his father in Wapanueka, Johnston county. They later went to the home of Russell Brown, the brother-in-law of defendant’s wife, and at whose home the mother of his wife was visiting. They left there about 9 o’clock, and drove to Atoka, a distance of 17 miles, going in defendant’s one-seated automobile. They drove to a cafe where beer was sold, known as “Betty’s Place,” arriving there about 10:30 on Sunday night. Defendant went in the cafe and got a bottle of beer for himself, and a “coke” for his wife, taking it out to the car. Some man and his wife, whom they did not know, from Oklahoma City, drove up, and they talked about fishing, and the two men went into the cafe, and defendant drank another beer. They visited around the cafe until 12 o’clock, when defendant got in his car, and they started home. He took a bottle of beer with him when he left, and after drinking the contents, threw the bottle from the car.

Defendant testified that he and his wife at no time had any quarrel or misunderstanding, and there is no evidence to contradict this statement. They were traveling at a rate of speed of from 20 to 30 miles per hour, when defendant heard the car door click, and realized that his wife had fallen from the car. He stopped, got out and went back to his wife, and found that she had been hurt. He picked her up in his arms and found that she was too heavy to carry, put her back down and backed the ear up, lifted her in, and started to Wapanucka, his home, at a faster rate of speed.

Defendant testified that he ran into a bunch of cattle on the highway, and in trying to miss them, turned into the bar-ditch, and struck one of the cows, bending a fender. After straightening the fender, he drove on to Wapanucka, going immediately to the home of Dr. Haberly. He could find no one at home, and went across the street to the home of a cousin, Lavada Riley, who informed him that the doctor had gone to a ball game in Dallas. He told his cousin that Norma had fallen out of the car and was hurt, and asked her opinion of the other doctor in Wapanucka. Miss Riley got in the car with them, and they drove two blocks to the home of Russel Brown. Defendant called Mr. Brown and told him that Norma had been hurt, and asked him to take them to Ada to the hospital. Mr. Brown and the defendant placed Norma in Mr. Brown’s automobile, and Mr. Brown, Mrs. Henson, the mother of Norma, and the defendant drove to Ada, a distance of 42 miles, and took Norma to the Valley View Hospital. Mr. Brown drove the car and Mrs. Henson sat in the front seat with him, and the defendant and his wife occupied the back seat.

They reached the hospital about 2:30 in the morning, and Norma was undressed by a nurse, Leota Sherman, and her mother, and was immediately examined by a doctor. Defendant told Miss Riley, Mr. and Mrs. Brown and his mother-in-law at Wapanucka, and the doctor at the hospital, that the door had come open and his wife had fallen out of the car.

Dr. Peterson examined Norma and prescribed for her, and was with her about half an hour. 'He returned to the hospital about 6 o’clock the next morning, and Norma died about 6:15. Pour hours thereafter an autopsy was made by Dr. Peterson, and he testified that “she had a deep laceration in the occipital region on the right side, posterior region of the skull.” He then explained that she had a deep laceration at the lower base of the skull on the righthand side, “and there was no depression of the bones found, it was not pushed in.” He testified that when he performed the autopsy he found a large hemorrhage in the posterior portion of the brain that was opposite the area where she was struck; and that there was small hemorrhage through the brain. That in his opinion her death resulted from a brain injury, caused by a blow from a blunt instrument. He testified that the deep laceration was a star-shaped wound, and that it penetrated to the skull. He also testified that there were no foreign substances in the wound, or in the clot of blood in her hair. That there were no other wounds or scratches on the arms, legs or body.

Mrs. Henson, mother of deceased, testified that there were no scratches, wounds or bruises on her body, except the back of her head; and that there was no dust or gravel in her hair or her clothing or shoes. The nurse, Leota Sherman, testified that she undressed Norma and put her to bed. That there was a little dust on the back of her hair, and she did not know whether it was gravel or dust.

Defendant was taken by the sheriffs of Atoka and Pontotoc counties along the road from Atoka to Wapa-nucka the following day in an effort to have him locate the exact spot where his wife fell from the car. Defendant was unable to locate the place with accuracy.

There was offered in evidence a lug wrench and a pair of pliers and pop bottles that were found in defendant’s car, which he left parked at the Russel Brown home in Wapanucka.

Mr. and Mrs. Brown, the mother of defendant, and Lavada Riley all testified that defendant stated to them when first seen that the car door had come open and his wife had fallen out of the car. They all testified that when they asked her what had happened, her only reply was, “My head is killing me.” From the testimony, this was the only statement that she made. She never at any time stated or gave any indication that defendant had struck her.

The officers also testified to conversations with defendant, both in Ada and on the way to Atoka and Wapa-nucka, but nothing contrary to the evidence above stated was related. They testified as to the condition of the automobile of defendant, and as to blood spots being on the back of the car seat, and one of the officers testified that he examined the car and found that the outside handle was off the right car door, and it could not be opened from the outside — but only by lifting the handle on the inside.

.Defendant also placed upon the witness stand Gilbert W. Daney, county judge of Atoka county, who conducted the preliminary examination of the defendant.

Judge Daney testified that after the preliminary examination and he had ordered the defendant held to the district court, he was passing the automobile of defendant on the street, and someone called his attention to the condition of the door, and to the fact that it would open by pressing against it from the inside. He Avas interested by reason of this issue having been raised at the preliminary hearing. He had the party get in the car and hold his hands up so that Avitness could see that he did not touch the fastener, and when he leaned against the door rather hard, it flew open and the party almost fell from the car, and witness attempted to catch him. This party was aAvay from Atoka county at the time of the trial, and did not testify, but the brother of defendant, Nily Dees, testified that the right-hand door had been caved in as testified to by defendant. He testified that he examined it the morning of the preliminary, and that Avhen you leaned against it, it Avould fly open. He saw his brother-in-laAV, Clint McNeily, noAV Avorking in the shipyards in the State of Oregon, nearly fall out of the car Avhen he leaned against it, Avhen calling the matter to the attention of the county judge of Atoka county.

We have carefully read and analyzed this record because of the issue presented — that the evidence is insufficient to sustain the judgment and sentence; and the argument presented when the case was orally argued.

The record has been examined with the rule well in mind that has so often been announced by this court, that the verdict of a jury will not be set aside where there is substantial evidence to support it, and also the rule just as firmly established that where the evidence is insufficient to sustain the judgment and sentence, this court will not hesitate to set it aside. Green v. State, 7 Okla. Cr. 194, 122 P. 1108; Sies v. State, 6 Okla. Cr. 142, 117 P. 504; Adair v. State, 15 Okla. Cr. 619, 180 P. 253; Cude v. State, 42 Okla. Cr. 357, 276 P. 240; Simpson v. City of Tulsa, 67 Okla. Cr. 224, 93 P. 2d 539; Cook v. State, 71 Okla. Cr. 65, 108 P. 2d 184; Cole v. State, 70 Okla. Cr. 109, 104 P. 2d 981; Dowell v. State, 67 Okla. Cr. 455, 94 P. 2d 956; Wheeler v. State, 67 Okla. Cr. 291, 94 P. 2d 9; Williams v. State, 61 Okla. Cr. 396, 68 P. 2d 530.

With this rule in mind, we have come to the conclusion that the judgment and sentence .in this case should not stand upon the evidence revealed by the record.

It will be noted that the information filed in this case alleges that the defendant “did . . . make an assault in and upon one Norma Dees by means of a certain dangerous weapon and blunt instrument, the exact description of which is unknown to informant, . . . .”

To substantiate this allegation, there was offered in evidence a lug wrench and a pair of pliers found in defendant’s car the morning following the alleged crime. It may be stated that the evidence did not reveal any blood stains or substance of any character to indicate that either of these instruments had in any way been used in striking deceased. At the time of the oral argument the Assistant Attorney General, who had assisted in the trial of the case in Atoka county, stated that he did not believe that either of these instruments had been used by defendant in striking deceased, but that in his opinion defendant struck her with a beer bottle. This contention is based upon the testimony of defendant that at the time he left Atoka he took with him a bottle of beer which he finished drinking a short distance out of Atoka, and tossed the empty bottle from the car prior to the accident. No bottle was found, or presented in evidence. Dr. Peterson was at no time asked by the state as to whether, in his opinion, a beer bottle could have produced the wound found on the head of deceased, but he was presented with the lug wrench and asked if an instrument of that character could have produced the wound, and he testified that it could. On cross-examination he testified that a blunt iron stake or stone could also have caused the wound.

Evidently the information was prepared upon the theory that the lug wrench or pliers had been used in striking deceased, and from reading the record, it seems that the state relied upon this theory at the trial, but this position was changed when the defendant testified to having a beer bottle in the car.

The only evidence upon which this conviction could be sustained, except a few circumstances which could with as much reason be construed as circumstances in his favor, is the testimony of Dr. Peterson. This is with reference to the wounds found upon the head of deceased, and his testimony as to the kind of instrument that in his opinion caused those wounds. While he was permitted to give this evidence and it was admissible, the deduction could just as easily be drawn that the deceased had fallen from the car as defendant testified, and that her head had struck some object, either on the car or on the ground, that caused the injury.

The general rule in criminal cases is that, where the evidence is circumstantial the facts shown must be not only consistent with and point to the guilt of the defendant, but must be inconsistent with his innocence. Where the evidence only raises a mere suspicion of the guilt of the defendant, it is insufficient to sustain a conviction.

There is not a line of testimony to show any motive for the killing of deceased by defendant. They had been together during the day. Not an angry word or misunderstanding of any kind is shown. They had talked and conversed with other people at Atoka just prior to leaving for home. There is nothing to show that they at any prior time had ever had any misunderstanding or quarrel in any way. Defendant’s every move after the accident was just as any person would have done had an accident like this occurred, as he testified. He attempted to take her to a doctor as quickly as possible. When unable to find a doctor, he immediately went to her people, her own mother and sister. He told them how it happened. He held his wife in his arms and gave her every attention, both before and after she entered the hospital. Her mother testified as a circumstance that in her opinion defendant was under the influence of liquor at the hospital, and this was based upon the fact that after the nurse put a screen around the bed, defendant sat in a chair and went to sleep. Defendant denied that he ever went to sleep that night, but stated that he sat in a corner and was quiet because the nurse told him that his wife must have quiet. There was no evidence that defendant had drunk anything with the exception of three bottles of beer, which he himself testified he had drunk over the period between 10:30 and shortly after midnight. But the fact that he may have closed his eyes and slept after they asked everyone to be quiet, does not appear to us as a circumstance worthy of much consideration.

It is also claimed by the state that the fact that a number of witnesses, including the mother of deceased, testified that there were no bruises on deceased, and no dirt or gravel in her hair, was a strong circumstance that she did not fall from the car as defendant testified. In this connection it may be noted that Leota Sherman, the nurse, testified that there was dust or gravel in her hair. The clothing worn by deceased was offered in evidence, but the shirt of defendant, which was also taken by the officers, was not found and produced. Defendant claimed that it showed to be dirty by reason of his having his arms around his wife, and her resting on his shoulder after the accident and on the way to Wapanucka.

With reference to there being only one wound, it is just as reasonable to come to the conclusion that this one wound was caused by the fall, as to guess that it was caused by a lick administered by defendant.

The fact that defendant could not find the exact spot where his wife fell from the car should not be given much weight. The testimony of the officers was that this was a well-traveled highway. The accident occurred at night, and it is easy to understand that it might be impossible for one to be able to locate the exact spot; and the traffic over the road would soon wipe out any tracks in the road.

After reading the record in this case, our views are in accord with the expression of the court in the case of Hinsley v. United States, 1 Okla. Cr. 392, 98 P. 363, 367, where it is said:

“In harmony with the decisions of appellate eourts generally, this court reluctantly disturbs the verdict of a jury upon the ground that the verdict is not supported by, and is contrary to, the evidence. This court will not set aside a verdict where there is a substantial conflict in the evidence. But, when there is no such conflict, and where there is an absence of evidence to support the verdict, it is the duty of this court to set aside the verdict. It is not the purpose of this court to invade the province of the jury in the determination of questions of fact; but in the interest of justice this court will not permit a verdict to stand unsupported by competent evidence. We have carefully read, closely considered, and analyzed all the testimony in this case, and we are unable to harmonize the verdict with the evidence.”

There is no conflict in the evidence in the instant case. This verdict in our opinion was rendered by reason of the evidence of Dr. Peterson. His testimony was not direct evidence as to what caused the injury, but was expert testimony. It could as easily be deduced that the injury was caused by deceased striking her head when she fell from the automobile, as stated by the defendant, as to say that she was struck by some blunt instrument held by the defendant. There is not a line of evidence that defendant struck her with anything. If the jury came to that conclusion, it could only be a guess or surmise. Certainly this defendant should not be deprived of his liberty for seven years unless there was evidence which would justify the jury in finding him guilty of the crime charged. Here, it is not a question of there being a conflict in the evidence on any material point. It is only upon the question of the evidence being insufficient to sustain the judgment and sentence.

Some of the circumstances other than heretofore mentioned which tended to corroborate the testimony of the defendant were that defendant testified that immediately after the accident he was driving at a faster speed and his car hit a cow in the road and bent a fender, and that he had to straighten it beforé he could go forward. One of the officers, Charley Gilliam, sheriff of Johnston county, testified that when he examined the car and found the fender bent, he asked defendant how the fender happened to be bent, and he immediately told him he had hit a cow and bent the fender. Also, defendant testified that the dent in the car door had been caused by his mother-in-law backing into the car at Hollis some time prior to this accident. This was corroborated by other witnesses.

We have examined this case in comparison with the facts in the case of Hubbard v. State, 71 Okla. Cr. 373, 112 P. 2d 174, which was reversed by this court because of the insufficiency of the evidence. In that case the defendant was charged with the murder of her husband. The facts in that case were much stronger than in the instant case, for the reason that a motive was shown, and here no motive was shown. Skelly v. State, 64 Okla. Cr. 112, 77 P. 2d 1162.

A person on trial charged with a crime is by law presumed to be innocent until his guilt is established beyond a reasonable doubt; and no inferences can be founded upon suspicion, except such as are natural and follow from the facts. If the facts and circumstances are not of such a character as to fairly permit an inference inconsistent with innocence, they cannot be regarded as sufficient to support a conviction. Nash v. State, 8 Okla. Cr. 1, 126 P. 260; Dowell v. State, 67 Okla. Cr. 455, 94 P. 2d 956.

Viewing this, record as a whole, one can but come to the conclusion that the evidence is insufficient to sustain the judgment and sentence. No person should be sent to the penitentiary and be deprived of his liberty where it is necessary to gness that he is guilty, and in this case, the evidence does not show defendant’s guilt beyond a reasonable doubt.

The judgment of the district court of Atoka county is reversed, and defendant discharged unless the county attorney has other evidence he deems sufficient to convict this defendant.

JONES, J., concurs. DOYLE, J., not participating.


text:
    BEN H. RHEUARK v. STATE.
    No. A-10421.
    June 20, 1945.
    (160 P. 2d 413.)

      Harold McArthur, of Tulsa, for plaintiff in error.
    Randell S. Cobb, Atty, Gen., and J. Walker Field, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Ben H. Rheuark, was-charged in the court of common pleas of Tulsa county with the offense of driving an automobile upon the public highway while under the influence of intoxicating liquor; was tried, convicted, and, pursuant to the verdict of the jury, was sentenced to serve 120 days in the county jail, and pay a fine of $250 and costs, and has appealed.

No question as to the sufficiency of the evidence having been raised, it is only necessary to give a short statement of the facts in order to correctly determine the proposition of law herein presented.

The defendant, about 3 o’clock p.m., on December 10, 1942, was driving a Terraplane automobile on the streets of the city of Tulsa. A young man was making some repairs to his truck, which he had stopped near the curb, when the defendant drove his automobile so close to the young man that he was knocked under the truck, but was not injured. The defendant was driving about 25 miles per hour. He was stopped about a block away. The policeman who arrested the defendant stated that he was drunk. No evidence was introduced on behalf of the defendant.

The only proposition presented in the brief filed herein on behalf of the defendant is that the argument of the assistant county attorney to the jury was vicious, was outside of the record, and was so grossly improper as to deprive the defendant of a fair and impartial trial.

All of the arguments both for the state and for defendant are reported in the record in full. The particular argument complained of was repeated statements by the prosecutor wherein he said, “I say to you that he is guilty.” On another occasion, the prosecutor stated:

“Now, if you do not give him a year’s time, I say to you very frankly that you will regret it. You will regret that you did not give him the limit. Every last one of you will regret it for a long time if you do not give Ben H. Rheuark the limit in this case.”

Objection was also interposed to actions of the prosecutor in his closing argument in turning to the defendant and asking him certain questions. One of these questions is as follows:

“Ben H. Rheuark was driving this car on Peoria street and this car was on East Pine, and he hit Leroy Simms and did not stop. You didn’t know that, did you? Mr. Rheuark: No, sir.”

At the close of his argument, the prosecutor once again told the jury that they would regret it if they did not give defendant the limit. He then stated, “that would be right and you know it, and Ben H. Rheuark knows that, too, don’t you, Ben? Mr. Rheuark: No, I do not.”

The record discloses that the prosecuting attorney several times stated to the jury, “That man is guilty and you will later regret it if you do not give him the limit.”

In each of the instances complained of by counsel for defendant, the record discloses that proper objections were made at the time the argument was presented and the objections were overruled with exceptions saved by counsel for defendant.

In Hill v. State, 76 Okla. Cr. 371, 137 P. 2d 261, 262, it is stated:

“A prosecuting attorney should confine his argument before the jury to a fair discussion of the issues in the case, and improper remarks objected to at the time will be considered and construed in reference to the evidence. If it appears that the improper argument may have determined the verdict, the judgment will be reversed.
“It is improper for prosecuting attorney to state Ms personal opinion as to tbe defendant’s guilt, or state facts not proved by evidence.”

See, also, Childs v. State, 13 Okla. Cr. 461, 165 P. 622; Cline v. State, 57 Okla. Cr. 206, 47 P. 2d 191.

It is evident that the argument herein complained of was highly improper. It was an effort upon the part of the prosecutor to impress the jury that there was more behind the prosecution than was shown by the evidence, but that they could rely upon his personal opinion of defendant’s guilt and that he should receive the limit.

It is insisted by counsel for defendant that the argument complained of is so serious and such a deprivation of defendant’s rights that the case should be reversed and remanded for a new trial. With this contention, we do not agree. We do find that the argument was improper and, because of its impropriety, it had the effect of the jury’s assessing more punishment than they probably would have assessed if the improper argument had not been made. When it is considered that the guilt of the defendant is apparent and no evidence is offered in his behalf, we tMnk the ends of justice would be met by modifying the judgment imposed upon defendant by eliminating the jail sentence.

It is, therefore, ordered that the judgment and sentence of the court of common pleas of Tulsa county be modified by reducing the judgment and sentence from 120 days in the county jail and a $250 fine to a $250 fine and all costs of the prosecution, and the judgment and sentence of the court of common pleas of Tulsa county as thus modified is affirmed.

BAREFOOT, P. J., concurs. DOYLE, J., not participating.


text:
    MARION ALLEN v. STATE.
    No. A-10470.
    June 27, 1945.
    (160 P. 2d 419.)
    Wimbish & Wimbish, of Ada, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., J. Walker Field, Asst. Atty. Gen., and Wayne Lewis, Co. Atty., of Ada, for defendant in error.
   BAREFOOT, P. J.

Defendant, Marion Allen, was charged in the county court of Pontotoc county with the unlawful possession of intoxicating liquor, to Avit: 27 pints of tax-paid Avhisky; was tried, convicted, and sentenced to' pay a fine of |50, and to serve 30 days in the county jail. From this judgment and sentence he has appealed.

A motion to dismiss the appeal has been filed in this case, for the reason that the appeal was not filed in the time required by law. No response has been filed to this motion, and no brief filed in behalf of the defendant.

We have examined the record and find that the place of business of defendant and his home in close proximity thereto; one mile north of the city of Ada, were searched by the officers and seven pints of tax-paid whisky found at his place of business, and 20 pints at his home. The defendant did not testify in person, and did not present any witnesses in his behalf. The instructions clearly stated the law, and no exceptions were taken thereto.

Finding no error in the record, the judgment of the county court of Pontotoc county is affirmed.

JONES, J., concurs. DOYLE, J., not participating.