author: DAVjENPORT, J.

text:
    COTTON WALKER v. STATE.

      No. A-6339.

      Opinion Filed Aug. 4, 1928.
    (269 Pac. 381.)
    Bridges, Yertrees & Ivy, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVjENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted in the county court of Jefferson county, on a charge of having possession of intoxicating liquor for the purpose of selling, giving away, and otherwise disposing of the same in violation of the prohibitory laws; was sentenced to 90 days’ imprisonment in the county jail and to pay a fine of $150. Motion for new trial was filed and overruled, and the case has been appealed to this court.

The testimony on behalf of the state is in substance as follows: That they procured a search warrant to search the house located on lot 15, in block 59, in the city of Ryan, Jefferson county, Okla..; that a man by the name of George Walters had the house rented.

Frank Driskill testified that they searched the house on lot 15, in block 59, about 10 o’clock in the morning, and found Heck Cremer at the house; that they found about 1% gallons of whisky, some bottles, fruit jars, cards, and dice, and some crates the bottles had been shipped in; that he did not have any conversation with the defendant about the whisky and the things he found in the house.

Mr. Driskill, on cross-examination, stated that George Walters and Heck Cremer were living at the place where they found the whisky.

W. F. Spain testified as to having issued the search warrant for the house on lot 15, in block 59, to be searched; that he issued the search warrant upon the affidavit of Mr. Driskill to search lot 15, block 59; that the defendant, Cotton Walker, was living at this house at the time; did not know how long he had been living there; that Heck Cremer and George Walters also lived at this house; the defendant was not there the morning the house was searched; that he does not recall having seen the defendant in town the morning the house was searched,

B. E. Adams, a deputy sheriff, called as a witness for the state, testified he was present when the house was searched; that he did not have a conversation with the defendant about living at the house, but on one occasion he saw the defendant pay Dr. Wade $8; the place belonged to Dr. Wade; that he had seen the defendant around the place a number of times. Witness Adams was asked the following questions:

“Q. Did you ever see the defendant there prior to this time, on the premises or doing anything-with whisky there ?
“Mr. Ivy: I object to what he saw before that; that don’t prove anything in this case. I object to it for the reason, it is incompetent, irrelevant} and Immaterial. There has not been any evidence introduced to show that he had possession of whisky.
“By the Court: Overruled; exceptions by Mr. Ivy.
“Mr. Ivy: I wish to make a general objection to all of these questions. A. Yes, sir.
“Q. What did you see him doing with it? A. I don’t say for sure whether it was him or one of the other parties.
“Q. You did not see him doing anything; they were all together? A. Yes, sir.”

J. W. Browning, called as a witness on behalf of the state, testified he was deputy sheriff; that he knew the defendant; that he had often seen the defendant give Dr. Wade money. Witness was then asked the following questions:

“Q. Do you know of your own personal knowledge that the defendant was handling whisky while he was staying there for the past six or eight months ?
“Mr. Ivy: Object to, calling for a conclusion of the witness.
“By the Court: Overruled.
“Q. I will ask you this question, Do you know the defendant’s reputation is such in the city of Ryan as a man who handles whisky in violation of law?
“Mr. Ivy: Objected to; incompetent, irrelevant, and immaterial.
“The Court: Sustained.”

On cross-examination the witness stated that George Walters and .Heck Cremer were living at the house when it was searched; that he did not know who the whisky belonged to.

H. H. Moler, called as a witness on behalf of the state, testified he knew where the house was that was searched, he had a conversation with the defendant about whisky; the defendant told him he was not at the house when it was searched.

Questions by the county attorney:

“Q. What else did he tell you about handling whisky, if anything?
“Mr. Ivy: I object to what he told about handling whisky. I object to the general conversation about handling whisky.
“By the Court: I will sustain it on the ground of the word ‘handling.’
“Q. Did he tell you he had been selling whisky in violation of law or giving it aw?,y?
“Mr. Ivy: I object; incompetent, irrelevant, and immaterial; doesn’t tend to prove any issues in this case.
“By the Court: Overruled. (Exceptions 'by Mr. Ivy.)
“A. Yes, sir; he told me that he handled it.
“Q. What else did he say? A. He told me several different times he was handling it, and said, ‘Don’t you want to buy a pint?’
“Mr. Ivy: I object to the answer and question; incompetent, irrelevant, and immaterial. (Sustained by the court.)
“Q. What did he say with reference to being able to catch him?
“Mr. Ivy: Objected to; incompetent,* .irrelevant, and immaterial. (Sustained by the court.)”

On cross-examination he said defendant’s statements were made in a joking way. Witness further testified that George Walters and his boy and Heck Cremer were staying in the house that was searched, and that he did not know whose whisky it was.

Frank Amer testified he saw the defendant at the house the morning of the day on which the search was made and defendant told him he was going to Texas to visit his mother.

It was agreed between the county attorney and the defendant’s attorney that L. L. Wade rented the house on lot 15, block 59, to George Walters, and that the same had been rented by George Walters from the 14th day of October, 1925, until the 14th day of April, when the said Walters turned said property back to L. L. Wade.

At the close of the testimony for the state the defendant demurred to the evidence of the state, on the ground that the same was insufficient to prove or establish that the defendant had committed a public offense or had violated any laws of the state .of Oklahoma, which demurrer was overruled and defendant duly excepted.

Defendant has assigned five errors alleged to have been committed by the court in the trial of his case. The first and second assignment of errors relate to the evidence being insufficient to sustain the verdict, and the verdict being contrary to law. It is urged by the defendant that the testimony of the state is wholly insufficient to sustain a conviction against him of possession of intoxicating liquor with intent to sell or dispose of the same in violation of law. The proof in this case shows that George Walters had rented the house that was searched from L, L. Wade, and that, when the search was made, Heck Cremer was the only one found in the house where the whisky claimed to have been found by the sheriff was. The defendant was not on the premises and some of the state’s testimony tends to show 'that he had on the morning prior to the search gone to Texas to visit his mother. Some testimony is introduced to show that the defendant had been around the place and sleeping in the house where the whisky was found. The state introduced some testimony to show that some one of its witnesses had had a conversation with the defendant in which he told him he was handling whisky, and asked if he did not want to buy some. On cross-examination witness stated defendant had said it in a joking way.

The defendant was tried upon a specific charge that on a certain date he had in his possession certain intoxicating liquor with intent to violate the prohibition laws of the state. There is no testimony which tends to show that the defendant was in actual or constructive possession of the whisky at the time it was found, or that he had ever been in possession of this whisky; nor is there any testimony in the record that this defendant made the statement to any one that the whisky found was his, or that he had any interest in it.

The defendant at the close of the testimony for the state demurred to the evidence, on the ground that it was insufficient to convict the defendant of any crime, which demurrer was overruled by the court, and defendant re“served his exceptions, and urges that the court erred in overruling his demurrer, and that, by reason of the action of the court in overruling his demurrer, his rights had been prejudiced before the jury, resulting in the jury returning a verdict of guilty.

It is necessary, in order to sustain a conviction in a case of this character, not only to show possession of the whisky by positive testimony or circumstances sufficient to overcome the presumption of innocence, but to convince the jury beyond a reasonable doubt of the guilt of the defendant. This court has repeatedly held that it would not disturb the verdict of a jury where there was competent evidence to support the finding of the jury, even though the evidence is conflicting.

In Ward v. State, 15 Okla. Cr. 61, 175 P. 60, this court said:

“It is a cardinal principle in our jurisprudence that the jury is the ultimate tribunal for the investigation and determination of questions of fact. Whether, however, the state fails to offer any evidence tending- to prove the offense charged, or whether the evidence offered tends to prove anything pertinent to the issue, is a question of law for the court, and where there is an entire absence of, evidence tending to identify the defendant with the commission of the offense charged in the information, the court should direct a verdict of acquittal. Ren v. State, 9 Okla. Cr. 671, 132 P. 1131. Defendants should not be convicted upon mere suspicions of guilt, or even strong probabilities of guilt. To warrant their conviction, the testimony, when all considered, should be clear and convincing, entirely satisfying the minds and conscience of the jury.”

The record shows that Heck Cremer and George Walters were jointly charged with the defendant in this case, and the testimony shows that Heck Cremer was found in the house where the whisky was found when the officers made the search. The only testimony tending to connect the defendant in any way whatever with the possession of the whisky is the testimony of some of the witnesses that the defendant had been rooming in the same house where the whisky was found. Defendant was not at the place at the time it was searched. He was in Texas, visiting his mother. The fact that the defendant was living at the place where the whisky was found in the room where Heck Cremer was sleeping only raises a suspicion that the defendant might have known that the whisky was there; but we do not think it sufficient to overcome the presumption of innocence, in the absence of any positive testimony connecting the defendant with the possession of the whisky, or any positive testimony showing the defendant having been connected with the selling or disposing of the whisky in violation of the prohibitory laws.

The defendant urges that the county attorney committed error prejudicial to his case by asking incompetent, irrelevant, and immaterial questions. An examination of the record shows there were some questions propounded by the county attorney to the witnesses that were improper, but to most of them the court promptly sustained the objection of the defendant. We do not think the rights of the defendant were prejudiced by the questions propounded by the county attorney, when the court sustained the timely objections to the question.

There are other errors assigned, but from the view we take of this record it is not deemed necessary to consider them. The testimony, as disclosed by this record, raises a suspicion of the defendant’s guilt, but is insufficient to sustain the verdict and judgment.

For the reasons herein stated, the case is reversed and remanded.

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


source: Caselaw Access Project

author: EDWARDS, J.

license: Public Domain

text:
    WILL WARNER et al. v. STATE.
    No. A-6059.
    Opinion Filed Aug. 4, 1928.
    (269 Pac. 508.)

      Rummons & Hughes, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Kiowa county on a charge of transporting whisky, and were each sentenced to pay a fine of $100 and to serve 30 days in the county jail.

The only assignment of error argued is that the evidence is insufficient to sustain the verdict and judgment. The record discloses a state of facts about as follows: On the day charged a deputy sheriff near the town of Roosevelt observed two cars on the highway; they stopped by the side of the road, and he saw one of the defendants ■ carry something from one car and place it in the other. The car then drove on, and the deputy sheriff came to the car in which defendants were, and found in it a tow sack containing a fruit jar carton and five fruit jars, some of which were broken. There was a small quantity of whisky in some of the jars; the sack, the carton, and the floor of the car were wet with whisky, a rag in the bottom of the car saturated with whisky; some had run out of the car onto the running board. There, is testimony that one of the defendants later said that, if he had known the kind of fellow.the deputy sheriff was, he would not have broken the jars; later at the county jail another of the defendants said that, when a fellow fools with liquor, he will get into trouble. The defendants testify in substance that they were driving along the highway and discovered a tow sack containing fruit jars by the side of the road, and that one of them got out, examined it, and put it in the car; that the jars did not contain whisky; that another car came by, and they stopped it to borrow a tire pump. The deputy sheriff also testified that one of the tires on defendants’ car was practically down. See Parnell v. State, 39 Okla. Cr. 361, 265 P. 66, relating to this same transaction.

The circumstances proven are such that the jury might reasonably and logically find defendants guilty. We are not at liberty to disturb the verdict and judgment for insufficiency of the evidence.

The case is affirmed.

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


text:
    J. C. RAY v. STATE.
    No. A-6141.
    Opinion Filed Aug. 4, 1928.
    (269 Pac. 509.)

      Lunsford & Windham and White & Reid, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Ar~+ Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Le Flore county of manslaughter in the first degree, and his punishment fixed at confinement for four years in the state penitentiary.

The record discloses that at the time charged defendant shot and killed one Ed Melton. The sufficiency of the evidence to sustain the verdict and judgment is not challenged, and we deem it unnecessary to make a recital of facts.

The first and second assignments of error go to the same question, that defendant was not arraigned on the amended information, and to put him upon trial on an amended information without arraignment and plea is a violation of his constitutional and statutory rights. The information charges defendant and J. W. Martin jointly with the crime of murder, j The allegation as to defendant is: !

“* * * That is to say that he, the said J. C. Ray, did then and there willfully, unlawfully, feloniously, without authority of law, and with a premeditated design to effect the death of another person, to wit, Ed Melton, shoot and discharge leaden bullets into the body of him, the said Ed Melton, from a certain loaded pistol which he, the said J. C. Ray, then and there had and held in his hands, then and there and ¡thereby! inflicting- mortal wounds upon the body of him, the said Ed Melton, of which mortal wounds he, the said Ed Melton, did then and there die. * * *”

Then follows an allegation that J. W. Martin aided and abetted the defendant, though not present. v; The defendant appeared in person, waived formal arraignment, and entered a plea of not guilty to this information. Defendant Martin separately demurred to the information as not setting forth sufficient facts to charge him with the crime of murder. No ruling was made on the demurrer of Martin, but an amended information was filed amplifying the allegations as to Martin being an aider and abettor, but no change was made in the allegation as to defendant. Defendant then demanded a severance, which was granted, and the state elected to try him first. Both sides announced ready for trial, a jury was called, examined, and sworn, and the opening statement of the county attorney made, in which he stated that defendant had entered a plea, of not guilty. The opening statement of defendant’s counsel was reserved. When the state called its first witness, defendant then objected that the information was not the one upon which defendant had been arraigned, or to which he had entered a plea. The question presented is, Was the trial upon the amended information without arraignment and plea erroneous, and, if so, is defendant injured thereby?

It is said generally that an arraignment is necessary in order to fix the identity of the accused, to inform him of the charge, and to give him an opportunity to plead. 8 R. C. L. 107, § 70. Formerly it was generally held, by the courts that an arraignment and plea were necessary and must be shown by the record. The modern trend of authority is that the arraignment may be waived, particularly where it would be a mere formality and no prejudice could have resulted from the omission. The following cases from this court announce and follow the liberal rule: Harris v. U. S., 4 Okla. Cr. 317, 111 P. 982, 31 L. R. A. (N. S.) 820, Ann. Cas. 1912B, 810; Wood v. State, 4 Okla. Cr. 436, 112 P. 11, 45 L. R. A. (N. S.) 673; Johnson v. State, 5 Okla. Cr. 1, 112 P. 760; Spencer v. State, 5 Okla. Cr. 7, 113 P. 224; Hast v. Ty., 5 Okla. Cr. 162, 114 P. 261; Ryan v. State, 8 Okla. Cr. 623, 129 P. 685; Simpson v. State, 16 Okla. Cr. 533, 185 P. 116. Thomas v. State, 17 Okla. Cr. 550, 190 P. 711; Sherman v. State, 19 Okla. Cr. 269, 200 P. 262; Brown v. State, 33 Okla. Cr. 217, 242 P. 1065.

The history and origin of the former strict rule and a reason why it should now be modified by the modem liberal rule is found in the case of Garland v. State, 232 U. S. 642, 34 S. Ct. 456, 58 L. Ed. 772. It was there said:

“It is apparent that the accused was tried and convicted upon an information charging an offense against the law, that he had a jury trial, with full opportunity to be heard, and that he was in fact deprived of no right or privilege in the making of his defense, unless such deprivation arises from the fact that he was not arraigned and required to plead to the second information before trial. The object of arraignment, being to inform the accused of the charge against him and obtain an answer from him, was fully subserved in this case, for the accused had taken objections to the second information, and was' put to trial before a jury upon that information in all respects as though he had entered a formal plea of not guilty. In this view, the Supreme Court of Washington, following its former decisions, held that the failure to enter the plea had deprived the accused of no substantial right, and that having failed to make objection upon that ground- before trial it was waived and could not be subsequently taken. This ruling, it is contended, deprived the plaintiff in error of his liberty without due process of law within the meaning of the Fourteenth Amendment of the Constitution.
“Due process of law, this court has held, does not require the state to adopt any particular form of procedure, so long as it appears that the accused has had sufficient notice of the accusation and an adequate opportunity to defend himself in the prosecution. Rogers v. Peck, 199 U. S. 425, 435, 26 S. Ct. 87, 50 L. Ed. 256, 260, and previous cases in this court there cited. Tried by this test it cannot for a moment be maintained that the want of formal arraignment deprived the accused of any substantial right, or in any wise changed the course of trial to his disadvantage. All requirements of due process of law in criminal trials in a state, as laid down in the repeated decisions of this court, were fully met by the proceedings had against the accused in the trial court. The objection was merely a formal one, was not included in the general language in which the objection to the introduction of evidence was interposed before the trial, and was evidently reserved with a view to the' use which is now made of it, in an attempt to gain a new trial for want of compliance with what in this case could have been no more than a mere formality.
“It is insisted, however, that this court in the case of Crain v. United States, 162 U. S. 625, 16 S. Ct. 952, 40 L. Ed. 1097, held the contrary. In that case the question was specifically made as to the necessity of a plea before trial, duly entered of record. The learned justice who spoke for the majority of the court announced its conclusion approving a number of early cases in the state courts which had held that such form of arraignment entered of record was essential to a legal trial, and holding that in a federal court no valid trial could 'be had without the requisite arraignment and plea, and that such must be shown by the record of conviction. If a legal trial cannot be had without a plea to the indictment, duly entered of record before trial, it would follow that such omission in the present case requires a reversal of the judgment of conviction, because the prisoner has been deprived of due process of law.
“Technical objections of this character were undoubtedly given much more weight formerly than they are now. Such rulings originated, in that period .of Eng-Jish history when the accused was entitled to few rights in the presentation of his defense, when he could not be represented by counsel, nor heard upon his own oath, and when the punishment of offenses, even of a trivial character, was of a severe and often of a shocking nature. Under that system the courts were disposed to require that the technical forms and methods of procedure should he fully complied with. But with improved methods of procedure and greater privileges to the accused, any reason for such strict adherence to the mere formalities of trial would seem to have passed away, and we think that the better opinion, when applied to a situation such as now confronts us, was expressed in the dissenting opinion of Mr. Justice Peckham, speaking for the minority of the court in the Crain Case, when he said (page 649) :
“ ‘Here the defendant could not have been injured by an inadvertence of that nature. He ought to be held to have waived that which, under the circumstances, would have been a wholly unimportant formality. _ A waiver ought to be conclusively implied where the parties had proceeded as if defendant had been duly arraigned, and a formal plea of not guilty had been interposed, and where there was no objection made on account of its absence until, as in this case, the record was brought to this court for review. It would be inconsistent with the due administration of justice to permit a defendant under such circumstances to lie by, say nothing as to such an objection, and then for the first time urge it in this court.’
“Holding this view, notwithstanding our reluctance to overrule former decisions of this court, we now are constrained to hold that the technical enforcement of formal rights in criminal procedure sustained in the Crain Case is no longer required in the prosecution of offenses under present systems of law, and so far as that case is , not in accord with the views herein expressed, it is necessarily overruled.”

In the record before us, defendant having in open court waived arraignment to the original information upon the identical allegations contained in the amended information and having announced ready for trial upon the amended information, there was no error in the trial upon the amended information without a formal arraignment. "

The only other assignment of error argued is that the court erred in his instruction No. 9, which instruction reads:

“Now in this case, if you do not believe from the evidence beyond a reasonable doubt that the defendant is guilty of murder in the taking of the life of the deceased, but you do believe from the evidence in the case beyond a reasonable doubt that the defendant, at the time and place alleged in the information, did, without a design to effect the death of the deceased, and in the heat of passion, but in a cruel or unusual manner or by means of a dangerous weapon, inflict upon the deceased the mortal wounds as charged, which caused the death of the deceased, unless you further believe that it was committed under such circumstances as constitute justifiable homicide, as defined in these instructions, then you will find the defendant guilty of manslaughter in the first degree.”

It is insisted that this instruction places upon defendant the burden of proving circumstances that would constitute justifiable homicide, while the law requires no more than to create in the minds of the jury a reasonable doubt. If this instruction stood alone, there might be some force to the argument. It is fundamental that the instructions are to be considered as a whole, and each must be considered in connection with the other instructions. It will be noticed that instruction 9, quoted, in effect tells the jury that, in case they entertain a reasonable doubt of defendant’s guilt of the crime of murder, he is not for that reason to be acquitted, but it is their duty to then consider the lesser offenses of manslaughter, and, if the killing was without design to effect death, but in the heat of passion, but in a cruel and unusual manner or by means of a dangerous weapon, such killing would be manslaughter in the first degree, unless committed under circumstances to constitute justifiable homicide “as defined in these instructions.” Then, examining further the instructions, we find the court fully instructed on the law of self-defense, in substance, that, if the jury should find that the homicide was committed by defendant in his self-defense, or if they entertained a reasonable doubt thereof, they should acquit defendant; construing this with instruction 9, and particularly the phrase “as defined in these instructions” the instructions as a whole contain exactly what defendant contends they should contain. Also the court gave the jury the usual instructions on the presumption of innocence and burden of proof. Taken as a whole and considered altogether, the instructions fairly state the law applicable, and are free from any prejudicial error.

.The case is affirmed.

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


text:
    A. J. SHARER v. STATE.
    No. A-6123.
    Opinion Filed Aug. 4, 1928.
    (269 Pac. 511.)
    R. M. Godfrey and A. T. Anglin, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error was convicted in the county court of Nowata county on a charge of having the possession of a still, and was sentenced to pay a fine of $150 and to serve 30 days in the county jail.

No notice of appeal, as required by section 2809, Comp. Stat. 1921, was served. There appears in the record a written notice of appeal, stating that plaintiff in error serves notice in open court of his intention to appeal to the Criminal Court of Appeals and requests that the notice be entered on the trial docket of the court. A defendant desiring to appeal in a criminal case must serve a written notice upon the court clerk and upon the county attorney. Section 2809, Comp. Stat. 1921. Section 782, Comp. Stat. 1921 (chapter 219, Session Laws 1917), does not repeal section 2809, supra, as has been many times held by this court. The notice here was served on neither the county attorney nor court clerk. Where the notice is not served as required by law, this court does not acquire jurisdiction. Burgess v. State, 18 Okla. Cr. 574, 197 P. 173; Kittrell v. State, 19 Okla. Cr. 56, 197 P. 1072; Lucas v. State, 22 Okla. Cr. 301, 210 P. 1040; Merritt v. State, 35 Okla. Cr. 194, 249 P. 436; Lutke v. State, 37 Okla. Cr. 18, 255 P. 719.

The attempted appeal is dismissed.

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


author: DOYLE, P. J.

text:
    HARRY SLEDGE v. STATE.
    No. A-5966.
    Opinion Filed June 12, 1928.
    Rehearing Denied Aug. 22, 1928.
    (269 Pac. 385.)

      See, also, 30 Okla. Cr. 160, 284 P. 1117.
    Womack, Brown & Cund, for plaintiff in error.
    The Attorney General and Leverett Edwards, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Appellant, Harry Sledge, was convicted in the district court of Jefferson county, on a change of venue from Stephens county, of the crime of rape in the first degree, and his punishment assessed at imprisonment in the state penitentiary for a term of 35 years. Upon this appeal from the judgment rendered in pursuance of the verdict, various errors are assigned, among which is the overruling of appellant’s motion to have the case set for trial at the September, 1925, term of court.

It appears from the record that the preliminary examination was held March 13, 1925; that on March 23 an information was filed in the district court of Stephens county jointly charging appellant, Harry Sledge, together with Bill Brown and Ted Elliott, with the crime of rape in the first degree, alleged to have been committed on the person of one Ethel Sreywas February 12, 1925.

A motion for change of venue on the ground of prejudice was made and granted, and on the 10th. day of April, 1925, the papers in said cause were transmitted by the court clerk of Stephens county to the court clerk of Jefferson county. On May 4th, appellant asked for and was granted a severance. On the granting of the severance, appellant made a motion to have the case set for trial at the September term of court, beginning September 7, 1925. On May 15th, the motion was by the court overruled, and the case set for trial June 15, 1925.

The refusal to continue the cause on application of appellant and set it for trial at the September term on the ground that under the statute the court had no jurisdiction to try the cause at the regular March, 1925, term of the district court of Jefferson county is assigned as error.

Our Code (section 2634, C. O. S. 1921) provides that, on a change of venue—

“the order of removal from the county must be entered upon the minutes and the clerk must thereupon make out, and within ten days transmit to the county to which the action is removed, a certified copy of the order of removal, and the record, and shall transmit the pleadings, including the undertaking for the appearance of the defendant, and of the witnesses, and the cause must be docketed and stand for trial at the first term of court after the cause has been transferred.”

It is contended by counsel for appellant that the last clause of the above section, “and the cause must be docketed and stand for trial at the first term of court after the cause has been transferred,” means that a term of court must intervene between the transfer and the trial of the cause, and th,at the district court of Jefferson county was without jurisdiction to try the cause before the next term after the cause has been transferred.

We think this contention is without merit. The object in construing statutes is to ascertain the legislative intent. That constitutes the law. If the language be clear, it is conclusive. There can be no construction where there is nothing to construe.

It is clear that, by the words, “first term of court,” used in the statute, was meant the term at which the cause was transferred and docketed on the change of venue. Otherwise stated, the words, the “first, term,” means the immediate term, the present term, as contrasted with the phrase, “next term,” meaning a succeeding term.

A change of venue is never allowed as a means of delaying the trial of a cause, and the application should be denied if it appears that it was merely for the purpose of delay. To construe the words of the statute above quoted as meaning the succeeding term would be in derogation of the constitutional right of the accused to a speedy trial. 'Const. Art. 2, § 20.

Our Code (section 2638) specifically provides:

“The court to which the action is removed must proceed to trial and judgment therein the same in all respects as if the action had been commenced in such court.”

The transfer of the cause by change of venue took with- it the whole cause and every incident belonging thereto to the district court of Jefferson county. Holcomb v. State, 16 Okla. Cr. 1, 166 P. 755.

It is our opinion that the defendant’s application to docket the cause for the September term of court was properly overruled.

When the case was called for trial, the defendant moved for a continuance because of the absence of Bill Anderson, one of his witnesses for whom a subpoena had issued and returned not found, and stating, in substance, that this witness, if present, would testify that he roomed with an old lady by the name of Leahy, on West Seventh street, in Duncan; that Ethel and Lillian Sreywas were rooming there at the time it is alleged that the defendant raped Ethel; that he saw her there the next morning and passed a few words with her, and she appeared to be all right except that she had a bruised place under one eye; “that he had opportunity to observe the conduct of Ethel Sreywas, and had heard her curse and use vile, vulgar and obscene language, and that she had made indecent and improper advancements to him; that the above facts are relevant because they tend to corroborate the defendant’s statement and evidence that the act of sexual intercourse charged in the information was had with the prosecuting witness with her consent, and tends to discredit the testimony of the prosecuting witness that the act charged was by force and without consent.”

It is contended that the court erred in overruling the defendant’s application for a continuance. An application for a continuance in a criminal case is addressed to the sound discretion of the trial court, and, unless it clearly appears that there has been an abuse of such discretion, this court will not reverse the judgment for refusal to grant the continuance. The rule is so well established that citation of authorities in its support are unnecessary.

In this case the application shows a want of diligence to have the witness in attendance upon the trial. The mere issuance of a subpoena is not due diligence in procuring the attendance of a witness, and the application does not state the witness is not absent with the consent or by the procurement of the defendant. It follows that the ruling of the court was not only within its discretion, 'but was proper by reason of the insufficiency of the application.

The following brief statement of the facts which we gather from the evidence will answer the purpose of our consideration of the remaining assignments:

Appellant, Harry Sledge, a single man, 20 years of age, lived on the Sledge place, north and Within half a mile of the city of Duncan. The prosecutrix, Ethel Sreywas, 18 years of age, lived with her two sisters in the city of Duncan. On the evening of February 22, 1925, the prosecutrix and her sister Lillian, 20 years old, were walking along the street in Duncan when the defendants, in a Ford coupe, drew up to the curb and invited them to go riding with them. They were acquainted with the defendant Ted Elliott, and he introduced the prosecutrix and her sister to the other two defendants. The girls declined the invitation, saying that they had to do some shopping. Then Ted Elliott asked if they could come to the house, and the prose-cutrix told them they would be at home in 30 minutes. The girls went on down the street, did their shopping, and returned to their home. The defendants drove up in the coupe, Ted Elliott went up on the porch and asked the girls to go to Harry Sledge’s home, and they would play the Victrola and dance; that they would go by and get Billy Morrison. Harry Sledge said he had a girl he could get, and they would go by and get her. The prosecutrix consented to go, and she got in the car with them. They went to Billy Morrisson’s and got her; then to a house they called Fern’s place. Harry Sledge went in. When he came back he said Fern was sick and could not go. Then they proceeded to the home of Harry Sledge.

The testimony of the prosecutrix as to what occurred at the Sledge home is to the effect: That, after they parked the car in front of the house, near the porch, Harry Sledge went in and lit the lights; then Ted Elliott went in and came back and told Bill Brown to get out and come in and bring his girl, and she got out of the car and went in with Ted Elliott; that a few minutes later, while standing in the middle room, she r heard Billy Morrison scream. Ted Elliott left the room, and she asked Bill Brown to take her home, and started out the room with him, when Harry Sledge came in, walked between them, and said, “Bill, let me have your girl.” Some one closed the room door and she asked Harry Sledge to take her home. Then she heard the car drive off, and Harry Sledge turned out the light and told her everybody was gone. Then he threw her down on a cot and commenced to choke her. That she kicked him and bit the side of his face. He said, “I will kill you or do what I started to.” That she screamed every time he let loose of her throat, and did everything she could to get loose from him, until she became helpless, and by overcoming her utmost resistance he accomplished an act of sexual intercourse. That he then got up' and turned on the light. That her whole head and face were covered with blood. He said, “Get up from there and wash that blood off, or you won’t go home until morning.” That she went into the kitchen, and washed her face. Then Ted Elliott came into the kitchen, and he washed her face. They went back to the middle room, and Billy Morrison and Bill Brown came in. That after some talk Harry Sledge said, “You better take the girls and go home before there is any further trouble”; and Bill Brown, Ted Elliott, and Billy Morrison took her home. That she told her sister Lillian what had occurred, and she telephoned for Dr. McGregory, and shortly af-terwards he called and examined and treated her, and she was under his care and that of two other physicians for the next three weeks.

Against the defendant’s objections, she identified a blood-stained undergarment as the garment worn by her on the night when the alleged offense was committed, and the same was exhibited before the jury.

The court also permitted Drs. McGlregory, Bartley, and Long, physicians attending the prosecutrix, to identify the blood-stained undergarment as the garment worn by the prosecutrix at the time they were called to treat her, to all of which the defendant objected.

It is argued that there was no issue in the case which the garment would tend to prove or disprove, and that its admission in evidence was highly prejudicial as tending to inflame the minds of the jury against the defendant.

We think the garment in question was clearly admissible as tending to show whether or not the act was voluntary, or whether force and violence were used by the defendant to accomplish his purpose.

It has been repeatedly held by this court that it is permissible to exhibit to the jury and to formally introduce in evidence physical objects which form a part of or serve to illustrate the transaction or occurrence upon which the accusation is based. January v. State, 16 Okla. Cr. 166, 181 P. 514; Burton v. State, 16 Okla. Cr. 602, 185 P. 842; Jones v. State, 17 Okla. Cr. 561, 190 P. 887; Saunders v. State, 4 Okla. Cr. 264, 111 P. 965, Ann. Cas. 1912B, 766.

Generally speaking, the time and manner in which objects of this character shall be displayed in the presence of the jury is a matter within the sound discretion of the court, and its discretion will not be interfered with unless abused with prejudicial consequences.

On the record before us, we are unable to see anything sufficient to warrant us in holding that such discretion was abused in the present case.

Billy Morrison, as a witness for the state, testified: That the party arrived at the Sledge farmhouse a little after 10 o’clock. That they gathered in the middle room of the house. That she went into the front room to see Bill Brown. Harry Sledge followed her and shut the door leading out on the porch. That she asked him why he did that, and asked him to take her home, and he began choking her, and she screamed. Then Ted Elliott came into the room, and she asked him to make Harry Sledge leave her alone. That she stood there crying, and Bill Brown came out of the middle room, and she went out with him, and they sat down on the front porch. That she heard some one fall, and heard Ethel Sreywas screaming. She further testified as follows:

“Go ahead, Miss Morrison, and tell the jury how many screams you heard and how1 long it continued? A. Ethel screamed continuously after she started screaming for a long time, and I tried to get Bill Brown to go in and help her out.
“The Court: Objection sustained as to anything she said to Bill Brown.
“Q. All right, Miss Morrison, what did you do then and what did Bill do? A. He refused to let me go in or would not let me go in.
“Counsel for defendant: We object to that question and move that the answer be stricken as incompetent, irrelevant, and immaterial as to what Bill Brown wouldn’t do?
“By the Court: Overruled.”

It is argued that this conversation with the Morrison girl was without the presence and not in the hearing of the defendant, and therefore would be hearsay, and that the court committed reversible error in admitting evidence that the defendant Sledge made an assault upon the witness Billy Morrison just previous to the time he assaulted Ethel Sreywas.

The testimony objected to was admitted by the court under the theory of the state that the defendants were acting in concert, with a common purpose and intent, in the commission of the crime charged.

The general rule is that, where there is evidence of conspiracy to commit a crime, and of its subsequent commission, the prosecution may, in support and corroboration thereof, show acts, declarations, or conduct of the alleged conspirators intermediate of the conspiracy and the crime which apparently recognizes the existence of the conspiracy, or reasonably indicates preparation or motive to commit the crime. Irwin v. State, 11 Okla. Cr. 301, 146 P. 453.

In the case of Smith v. State, 19 Okla. Cr. 386, 200 P. 553, this court said:

“It is true this evidence was admissible against appellant only upon the theory that all the defendants had conspired together to do an unlawful act. Conspiracies are often difficult to prove by direct testimony, and rarely can any express understanding or agreement be shown. Their existence is more often shown as in this case by the proof of circumstances, the concurrence of which leads one to believe that the parties were acting in concert with a common purpose to do an unlawful act. Large latitude is allowed necessarily in proof of a conspiracy, and the jury should be permitted to have before them all the facts which will enable them to come to a correct conclusion. The rule in such cases is well defined, and has been announced in a number of the decisions of this court. Starr v. State, 5 Okla. Cr. 440, 115 P. 356.”

As a general rule, any act of the defendant may be admitted in evidence against him, provided it has any logical or legal tendency to prove any matter which is in issue.

Evidence that tends directly to prove the defendant’s guilt is not rendered inadmissible because it proves or tends to prove him guilty of another and distinct offense.

Evidence of a different offense from the one charged is admissible when both offenses are so closely [linked or connected as to form a part of the res gestae. State v. Rule, 11 Okla. Cr. 237, 144 P. 807; Herndon v. State, 16 Okla. Cr. 586, 185 P. 701; Austin v. State, 28 Okla. Cr. 73, 228 P. 1113. In our opinion the evidence objected to is clearly :a, part of the res gestae, and the objections thereto were properly overruled.

A number of exceptions are reserved to the rulings of the court in giving and refusing instructions.

The testimony of the defendant- in his own behalf was to the effect that, in the beginning, the prosecutrix consented, but in the course of the act she resisted. The instruction on this theory of the defense by the court is as follows:

“No. 8. Gentlemen of the jury, you are instructed that, if you believe from the evidence in this case that the prosecuting witness, Ethel Sreywas, consented or yielded, by her acts or otherwise, to the commencement of the act of intercourse, then the defendant would not be guilty of rape, and, if you so find, or entertain a reasonable doubt concerning the same, then you should resolve the doubt in favor of the defendant and acquit him.”

Upon careful examination, we find that the instructions given by the court fully, fairly, and correctly state the law of the case, and for this reason the court did not err in refusing to give the instructions requested by the defendant.

Finally it is contended that the verdict is vindictive and the punishment assessed is excessive, unreasonable, and appears to have been given under the influence of passion and prejudice, which had been aroused and brought about by the conduct of attorneys representing the state.

We cannot see how any jury under the evidence could have returned a verdict otherwise than one of guilty. However, it is both the spirit and intention of our laws that punishment shall be imposed in criminal eases for the protection of society and the reformation of the criminal, and sentence should be imposed in keeping with the spirit of the law. Spears v. State, 10 Okla. Cr. 563, 139 P. 841. Williams v. State, 19 Okla. Cr. 307, 199 P. 400.

In view of the fact that the defendant had not attained his majority and other facts and circumstances as shown by the record, we are inclined to think that the punishment imposed is excessive, and that the judgment and sentence should be modified by changing the term of imprisonment from 35 years to 25 years. Carrying the sentence thus modified into execution may serve to teach him and others that the majesty of the law protects the weak and helpless as well as the strong, and possibly imbue him with some other and better notions than of those only of gratifying his lust and sensual passions.

The judgment and sentence herein will therefore be modified by reducing the sentence to a term of 25 years’ imprisonment in the penitentiary, and, as thus modified, the judgment of conviction is affirmed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    Ex parte J. J. BUTLER.
    No. A-7068.
    Opinion Filed Aug. 25, 1928.
    (269 Pac. 786.)
    T. D. Taylor, for petitioner.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for respondent.
   DOYLE, P. J.

On behalf of J. J. Butler a duly verified petition for writ of habeas corpus was filed in this court on June 16, 1928. Attached thereto and made a part thereof is a stipulation and an agreed statement of facts from which it appears: That petitioner, J. J. Butler, was convicted in the district court of Bryan county of the crime of adultery, and was sentenced on August 29, 1913, to imprisonment in the penitentiary for a term of 18 months. That thereafter, on March 19, 1914, he was paroled by Governor Cruce. That thereafter, on June 1, 1926, the said petitioner, J. J. Butler, was tried and convicted for the crime of driving an automobile while intoxicated. He was sentenced to pay a fine of $500 and to imprisonment in the penitentiary for a term of one year. That on May 11, 1928, the said parole, issued by Governor Cruce, was revoked by Governor Johnston. That “on June 7, 1928, the term of the second imprisonment was up, and the said J. J. Butler was recommitted upon his first sentence.”

It is averred in the petition “that said imprisonment is illegal, for the reason that the Governor of the state of Oklahoma had no legal right to revoke the parole after the term for which your petitioner was convicted.”

In Ex parte Ridley, 3 Okla. Cr. 350, 106 P. 549, 26 L. R. A. (N.S.) 110, it is said:

“When a convict has been released upon a parole, his rearrest and return to custody by an executive order revoking the parole is not in violation of the constitutional guaranty ‘that no person shall be deprived of his liberty without due process of law’ or ‘that no warrant shall issue but upon probable cause supported by oath or affirmation,’ since, being a convict at large by executive clemency, which he has accepted on conditions included therein, upon the violation of any of such conditions he is merely a.n escaped convict, and not entitled to invoke such constitutional guaranty.”

In Ex parte Horine, 11 Okla. Cr. 517, 148 P. 825, L. R. A. 1915F, 548, it is held:

“An executive order revoking a parole and directing the rearrest and return to custody of the convict without giving him an opportunity to be heard, is not violative of the constitutional guaranties that no person shall be deprived of his liberty without due process of law, and ‘that no warrant shall issue but upon probable cause, supported by oath or affirmation,’ .since being a convict at large by executive clemency, which he has accepted on the conditions therein stated, the legal status of the convict upon the revocation of the parole becomes the same as it was before the parole was granted.”

The parole granted petitioner was an act of grace or favor upon the part of the state by its chief executive. Petitioner was free to accept the parole with its conditions, or reject it and serve his sentence. He chose the former, and stipulated that, for a violation of the conditions, or for any other reason deemed sufficient, the parole might be summarily revoked by the Governor, and petitioner should be remanded to the penitentiary to serve out the sentence. Upon its revocation, the legal status of the petitioner should be regarded the same as it was before the parole was granted and accepted.

Upon the undisputed facts and for the reasons stated we are of the opinion that the detention of petitioner is warranted under the conditions of the parole by which he secured his release from imprisonment.

The writ of habeas corpus is therefore denied.

EDWARDS and.DAVENPORT, JOJ., concur.


author: DAVENPORT, J.

text:
    R. C. LOGUE et al. v. STATE.
    No. A-6802.
    Opinion Filed Aug. 28, 1928.
    (269 Pac. 787.)
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiffs in error, hereinafter referred to as the defendants, were convicted upon a charge of robbery with firearms, and the punishment of R. C. Logue fixed at 10 years in the state penitentiary, and the punishment of J. B. Morris, alias J. D. Nunn, fixed at 5 years in the state penitentiary. Motion for new trial was filed and overruled, and defendants appeal to this court.

The testimony in substance shows that T. A. Edger-ley was going to his work early in the morning of the 14th of May, 1927, and a short distance from his place of work in the river bottom in Oklahoma City was held up and robbed; that he gave the alarm, and accompanied the officers to the place where he was robbed, and in a car the defendant J. B. Morris, alias J. D. Nunn, was sitting, and the defendant R. C. Logue was found a short distance away from the car on the river bank. The witness identified defendant Logue as being the party that searched him and took from him his knife and 35 cents in money. The defendants denied they had anything to do with the robbery, but admitted they had gone together to the place where they were found for the purpose of fishing; that they had bank hooks and were waiting to see if they could catch any fish'.

Defendants have filed four assignments of error alleged to have been committed by the trial court, which may be treated together, as they all relate to the insufficiency of the evidence to sustain the judgment of conviction. No brief has been filed supporting the assignment of errors, although the time for filing the brief has expired. The testimony of the state’s witness is positive as to the identification of R. C. Logue, and defendant J. B. Morris, alias tf. D. Nunn, admits that he, in company with Logue, had gone to the place where they were found, and where Edgerley swears he was robbed, for the purpose of fishing. The testimony of the state seems to have satisfied the jury of the guilt of the defendants, notwithstanding the defendants’ positive denial. It is the exclusive province of the jury to pass on the credibility of the witness and the weight of their testimony, and where there is substantial evidence to support the finding of the jury, though the testimony is conflicting, this court will not interfere.

After a careful examination of the record, it appears that the defendants were accorded a fair trial, that the court properly declared the law, and that no errors prejudicial to the rights of the defendant were committed in the trial.

The judgment of the trial court is affirmed.

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


text:
    HARDY GORDINEER v. STATE.
    No. A-6246.
    Opinion Filed Sept. 1, 1928.
    (269 Pac. 788.)
    H. Tom Kight, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error was convicted in the district court of Rogers county on a charge of manslaughter in the second degree, and was sentenced to serve a term of three years in the state penitentiary.

The judgment was rendered on December 21, 1925, and the appeal lodged in this court in February, 1926. No briefs in support of the appeal have been filed, nor was any appearance for oral argument made at the time the case was submitted. We have examined the record, and find that the information properly charges the crime of murder, the evidence supports the verdict and judgment, the issues were fairly submitted, and no jurisdictional or fundamental error is apparent.

The case is affirmed.

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


text:
    LEE KAUFMAN v. STATE.
    No. A-6504.
    Opinion Filed Sept. 1, 1928.
    (269 Pac. 787.)
    Wieck & Armstrong, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DOYLE, P. J.

Lee Kaufman was convicted in the county court of Kay county on a charge that he did unlawfully sell two drinks of whisky to one P. C. Copeland, and, in accordance with the verdict of the jury, was sentenced to pay a fine of $50 and to be confined in the county jail for 80 days. From the judgment rendered December 4, 1926, an appeal was perfected by filing in this court on February 18th, 1927, a petition in error with case-made. On May 15, 1928, the cause was submitted on briefs.

His counsel of record have filed a motion to abate the proceedings on the ground that plaintiff in error, Lee Kaufman, departed this life at Claremore on or about the 17th day of June, 1928, which motion is supported by the affidavit of Charles Jenkins, and a further showing that the motion and affidavit attached was duly served on the Attorney General and the county attorney of Kay county.

In a criminal action, the purpose of the proceedings being to punish the defendant in person, the action must necessarily abate upon his death.

It is therefore considered, ordered, and adjudged that the proceeding in this cause, and especially in the judgment appealed from, has abated, and that the county court of Kay county enter its appropriate order to that effect.

EDWARDS and DAVENPORT, JJ., concur.


text:
    Ex parte HENRY L. GUY.
    No. A-7144.
    Opinion Filed Aug. 27, 1928.
    (269 Pac. 782.)
    Geo. H. Giddings, for petitioner.
    Edwin Dabney, Atty. Gen., and J. H. Lawson. Asst. Atty. Gen., for the State.
   EDWARDS, J.

This is an original proceeding in habeas corpus. The petitioner alleges, in substance: That he is illegally restrained by the sheriff of Oklahoma county. That in December, 1927, he was convicted for having the unlawful possession of narcotics, and was sentenced to serve a term of one year in the state penitentiary. That no appeal was taken from such judgment, and he was incarcerated in the penitentiary and served two months and four days. That the Governor of the state then issued an order to the warden of the penitentiary, ordering the release of petitioner and the delivery of him to the federal authorities. That petitioner was then taken from the penitentiary and delivered to the federal authorities at Oklahoma City, was confined for some time in the county jail as a federal prisoner, then convicted in the federal court, and sentenced to serve six months in the county jail, which sentence he has fully served. That he is now being held without commitment or warrant for the purpose of returning him to the state penitentiary under the judgment in the state court. The allegations are not controverted, and the facts are either admitted or stipulated in open court.

It is well settled that the power of the state government is sovereign within its territorial limits, except as restricted and limited by the federal Constitution and laws; that the powers of the federal government and of the state government, although covering the same territorial limits, are those of separate and distinct sovereignties, acting separately and independently within their respective spheres. Ableman v. Booth, 21 How. 506, 526, 16 L. Ed. 169. In these separate jurisdictions, each has courts to declare and enforce its laws in common territory. It is highly desirable that there should be no conflict of jurisdiction and that there should be a spirit of reciprocal comity and mutual assistance. To this end it is generally held that the sovereignty which first takes jurisdiction either of person or property must be permitted to exhaust its remedy before the court of other sovereignty shall take it for its purpose. Covell v. Heyman, 111 U. S. 176, 4 S. Ct. 355, 28 L. Ed. 390; Ponzi v. Fessenden, 258 U. S. 254, 42 S. Ct. 309, 66 L. Ed. 607, 22 A. L. R. 879. But to adhere to the strict right of a sovereignty in every case might furnish a criminal an opportunity to avoid the consequences of his crime and permit an accused to use the machinery of one sovereignty to obstruct his trial in the courts of the other. It is at times proper that one sovereignty waive its strict right to exclusive custody to the person of an accused in order that the other sovereignty may also deal with him for crime against it, particularly when the offense against the laws of the latter sovereignty is more serious. For this reason the state courts hold that the fact that a person is serving a sentence for another crime gives him no immunity from a second prosecution. The Supreme Court of the United States also has held that the federal court may waive its strict right to exclusive custody of an accused person, and, although there is no statute expressly giving such authority, the Attorney General of the United States under his general powers of supervision of federal prisoners may waive the exclusive right of the federal government. Ponzi v. Fessenden, supra, and authorities therein cited. In the case of State ex rel. Short, etc., v. White, U. S. Marshal, 89 Okla. Cr. 242, 264 P. 647, the United States surrendered one Art Neff for trial in the court of this state. In these cases the judgment which the accused was serving was not interrupted and the order of commitment not violated. The accused, at the conclusion of his trial, was returned to the federal authorities, and the judgment in the state court took effect upon the expiration of the judgment in the federal court.

There is introduced in evidence an order, signed by the Governor and attested by the secretary of state under the great seal of the state, which, in substance, recites and directs that petitioner has been convicted and is serving a sentence of one year in the state penitentiary, a.nd orders the warden of the penitentiary to deliver petitioner to the federal authorities. A part of said order is as follows:

“* * * Whereas, it is made to appear that the cause of United States of America v. Henry L. Guy, No. 6554, .yvill be called for trial during the first part of March in the year of 1928, and in order that he may be present in said court for said trial, it is hereby ordered that 'the warden of the penitentiary deliver the said Henry L. Guy to Ben Dancy, sheriff of Oklahoma county, Oklahoma, to be by him delivered to the custody of the United States marshal for the Western District of Oklahoma, to remain in his custody until said cause No. 6554 in the United States District Court for the Western District of Oklahoma, shall be disposed of, and after the disposition of said cause, if the said Henry L. Guy shall have been convicted in said court, then after the satisfaction of the judgment and sentence pronounced against him in said court that he be returned to the penitentiary at McAlester for the purpose of serving out the sentence as rendered by the district court of Oklahoma county in the case hereinabove referred to. * * *”

Section 10, art. 6, of the state Constitution, in part provides:

“The Governor shall have power to grant, after conviction, reprieves, commutations, paroles, and pardons for all offenses, except cases of impeachment, upon such conditions and with such restrictions and limitations as he may deem proper, subject to such regulations as may be prescribed by law. * * *”

The authority of the Governor to release a convict undergoing sentence is found only in the foregoing section of the Constitution. The exercise of this authority of the Governor shall be attested by the secreary of the state under the great seal of the state. Section 18, art. 6, Const.; Ex parte Jones, 25 Okla. Cr. 347, 220 P. 978, 34 A. L. R. 206; Jones v. Sneed, 101 Okla 295, 225 P. 700.

The purpose, of this regulation obviously is to authenticate his acts and make same a matter of record, so that the authenticity and verity of his acts may not be called in question. The instrument signed by the Governor above referred- to is neither a reprieve, commutation, nor parole. It purports to release petitioner from confinement in the penitentiary and to deliver him to another sovereignty absolute and final, except that, if prisoner shall be convicted in the federal court and shall serve his sentence, he shall then be returned to the state authorities. It does not provide that, if acquitted in the federal court, he shall be returned. When convicted in the federal court, petitioner might have been sentenced to incarceration in a federal penitentiary beyond the limits of this state. Surely it cannot be contended, that in such case, at the expiration of his sentence he could have been brought back to this state and again incarcerated in the penitentiary to serve the remainder of- his sentence under the judgment in the state court. In the case of Ex parte Youstler, 40 Okla. Cr. 273, 268 P. 323, and Ex parte Middaugh, 40 Okla. Cr. 280, 268 P. 321, this court held that, where an accused person was in constructive custody only and not actually serving a sentence, the rendering of such accused upon requisition to another state as a fugitive by the Governor of this state, waived jurisdiction of his person, but did not satisfy the judgment. When serving a sentence by actual confinement, a different rule obtains. In State v. Saunders, 288 Mo. 640, 232 S. W. 973, the Governor of the state of Iowa, under somewhat similar conditions to that disclosed here, delivered a prisoner undergoing sentence in the penitentiary by an order with the conditions as follows:

“This suspension of sentence is granted upon the recommendation of the board of parole, and is for the purpose of releasing the prisoner to the authorities of Livingston county, state of Missouri, for trial under pending indictments, it being expressly understood that the state of Missouri assumes all expense of his removal and in case of failure to convict the said T. M. Saunders shall be returned to the penitentiary of this state for the completion of his sentence, such return to be without expense to this state. ‘The Governor of the state may for cause revoke the foregoing and direct the further execution of the sentence or make other or further order in the case, or modification thereof.’ ”

This instrument is referred to in a concurring opinion as a “legal curiosity” and one not within the authority of the executive power. The court in syllabus 4 there holds:

“Instrument whereby Governor, on demand for surrender of one who was serving sentence for crime committed in the state, by Governor of other state where he was wanted for other crime committed in such other state, suspended the further execution of the judgment whereby he was sentenced on the condition that he be returned to the state for completion of his sentence on other state’s failure to convict him, held a waiver of the right to require the prisoner to complete his sentence before surrender to other state, being in the nature of a pardon which, notwithstanding the condition stated, became absolute upon his surrender to the authorities of other state.”

In the body of the opinion, it is said:

“* * * The question arises, therefore, as to whether it may not properly be regarded as in the nature of a pardon. It released the appellant from the punishment he was undergoing in Iowa, in order that he might be prosecuted for an offense in Missouri. Notwithstanding the condition of this release, we are of the opinion that it became absolute under his surrender to the authorities of this state. If so, then it was unquestionably in the nature of a pardon, and hence the objections here made to the action of the Governor must go for naught. It was so held in Re Hess (5 Kan. App. 763, 48 P. 596 and in State (People) ex rel. v. Hagan (34 Misc. Rep. 24, 69 N. Y. S. 475), supra. * * *» „

The power to grant pardons and paroles carries with it the power to make a conditional pardon or parole. It is generally said that the Governor in exercise of this power may ■ impose conditions which are not illegal, immoral, or impossible of performance. Sibenaler v. State, 11 Okla. Cr. 504, 148 P. 678; Ex parte Horine, 11 Okla. Cr. 517, 148 P. 825, L. R. A. 1915F, 548; Ex parte Collins, 32 Okla. Cr. 6, 239 P. 693. To constitute a conditional pardon, however, the condition imposed is not a mere contingency of which the person pardoned has no control, but conditions which properly refer to matters of conduct, deportment, occupation, or the doing or refraining from doing things within the classification stated as legal, moral, and possible. As the federal government may deliver an accused person held by it to the state, so the state may deliver a convict undergoing sentence in a state prison to the federal authorities for the purpose of having him testify or for the purpose of prosecution in the federal courts. The proper practice is for the federal authorities to obtain custody by a writ of habeas corpus ad testificandum or writ of habeas corpus ad prosequendum, as was done in the Ponzi Case and Neff Case, supra. The state then by its proper authority may respect the writ and deliver the person to the federal authorities as a witness or for the trial, and upon the conclusion of his testimony or the completion of his trial he would be returned to the state authorities to complete his sentence. Here, however, this was not done. Petitioner was delivered to the federal authorities not by any judicial act, but by executive order in the nature of a pardon, not for the purpose of their prosecuting him and then returning him to the state authorities for completion of. his' sentence, but that he might be prosecuted and with no- provision made for his return to the state authorities if acquitted, if convicted to be returned only when he had completed his sentence imposed by the federal court. This condition, we think, was beyond the power of the executive to make, and is a nullity. The instrument of the Governor designated as an “order” by which petitioner was delivered to the federal authorities is in legal effect and meaning a pardon as to the penalty remaining under the sentence of the state court, though not a pardon in the full sense as restoring citizenship. Under this view of the act of the Governor and of the law, the petitioner having served his time under the federal sentence, and being now held by the sheriff of Oklahoma county for the state authorities, he is entitled to his discharge.

The writ is awarded, and petitioner discharged.

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


text:
    WILL GIFFORD v. STATE.
    No. A-6153.
    Opinion Filed Aug. 30, 1928.
    (269 Pac. 788.)

      W. W. Holloway, for plaintiff in error.
    Edwin Dabney, Atty; Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The information filed in the superior court of Okmulgee county March 25, 1925, in substance, charges that in said county' on the 16th day of August, 1924, defendant, Will Gifford, did take, steal, and carry away one Ford touring car, the personal property of Pat Johnson. Upon his trial, a verdict of guilty was returned, and his punishment assessed at imprisonment in the penitentiary for the term of five years. Motion for new trial was duly filed and overruled. He has appealed from the judgment rendered on the verdict.

The first contention of counsel for the defendant is that the court erred in refusing to grant a continuance. It appears from the record that the affidavit for continuance was filed October 22, 1925, by reason of the absence of Mrs. Jane Marsh, and alleging that “defendant expects to prove by said witness the whereabouts of said defendant the alleged time said crime w.as committed.”

There is nothing in the record to show that said motion was ever passed upon by the court. The record shows that, when the case was called for trial, the defendant and his attorney announced ready for trial. It follows that the question argued is not presented by the record.

It is also alleged that the evidence is insufficient to support the verdict and judgment, and that the court erred in not giving a new trial. The material and undisputed facts in the case as disclosed by the record are substantially as follows:

Pat Johnson, living at Dewar, was the owner of a Ford touring car, purchased from X. R. Gill, at Okmulgee, December 6, 1928; that on August 16, 1924, said car was stolen from the fairgrounds in Okmulgee county, and five or six days later he recovered the car through the officers of said county; that the engine number had been changed on the car after it had been stolen.

George Luttes, deputy sheriff, testified that he located the car in question at the home of the defendant, who stated to the officers that he had bought the car in Okemah, three days before; that he admitted that he had changed the numbers on the car.

X. R. Gill, Ford dealer, testified that the officers brought the car to his place in Okmulgee, and he identified the car as the one he had sold to Pat Johnson; that the motor number had been tinkered with.

M. L. Larimore, deputy sheriff, testified that he was present when the defendant said “he changed the numbers on the car,” and the defendant further stated that he had pitched the stencil he had used out in the weeds close to the big gate at his home.

J. B. Watson, registration clerk at the highway department, testified that he registered an automobile for Will Gifford or W. L. Gifford, and identified a copy of the affidavit for license for a Ford touring car, that said affidavit showed the engine number, and that the car was an Arkansas car that had been brought into this state on the 8th day of June, 1924.

As a witness in his own behalf, the defendant testified that he bought his car on Sunday from Mr. Smith of Okemah; that the next evening he received a bill of sale of the ear; that it had an Arkansas tag; that he went to Oklahoma City and applied for a license, then drove back to Henryetta; that evening the officers came down and woke him up and said they were looking for a stolen car; that he went with them, and they looked the car over, and they stated that it was the car they were looking for; that he told them that he had bought it and paid for it, and showed them the bill of sale; that they tried to make him admit that it was a stolen car, and that they struck him, but he did not admit that he knew it was a stolen car.

' It would serve no useful purpose to give a synopsis of the testimony of five or six witnesses who testified in support of an alibi defense. All those witnesses were before the jury in the trial court. The jury, after due consideration and deliberation, decided the issues of fact adversely to the defendant.

Where the evidence is conflicting and apparently irreconcilable, it was the exclusive province of the jury to determine whom of the witnesses to believe and whom to disbelieve, or whose testimony to disregard.

Where there is substantial evidence to support the verdict, this court will not reverse a conviction on the sole ground of the insufficiency of the evidence.

Upon the whole record, we find no material error. It appearing that the defendant had a fair trial, the judgment appealed from is affirmed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    Ex parte W. A. (JACK) STONE.
    No. A-7149.
    Opinion Filed Sept. 1, 1928.
    (269 Pac. 785.)
    Taylor & Taylor, for petitioner.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. . Atty. Gen., for the State.
   Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst, habeas corpus for bail. Petitioner alleges that he is held by the sheriff of Garfield county under commitment of a justice of the peace on a charge of rape in the first degree, that an application for bail was presented to the district judge of that county and bail denied.

The petitioner is charged with rape in the first degree as having been committed upon the person of a female child. 8 years of age. Rape in the first degree is punishable by imprisonment not less than 15 years; the maximum punishment is death. Section 1838, Comp. iStat. 1921. A person accused of crime is entitled to bail except where the charge is for a capital offense, where the proof of guilt is evident or the presumption thereof great. Article 2, § 8, Const. The writ of habeas corpus may be had for the purpose of letting an accused person to bail. Sections 434, 2919, Comp. Stat. 1921.

Where a person is charged with a capital offense and has been committed by an examining magistrate and makes application to this court by habeas corpus to be let to bail, a burden is on him to show facts sufficient to entitle him to bail, unless such facts appear from the evidence adduced on the part of the prosecution. Ex parte Pope, 37 Okla. Cr. 366, 259 P. 149; Ex parte Whitenack, 38 Okla. Cr. 102, 259 P. 165.

We have examined the petition filed herein and' the transcript of the evidence taken at the preliminary and the additional affidavits filed. The petitioner did not take the stand, and offered no evidence. We are of the opinion that petitioner has not sustained the burden fixed by the law and upon the showing made is not entitled to be let to bail. As the case has not yet been tried, we deem it unnecessary to recite or comment upon the evidence.

The writ is denied.

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


author: PER CURIAM.

text:
    GEORGE JOHNSON et al. v. STATE.
    No. A-6110.
    Opinion Filed Sept. 1, 1928.
    (269 Pac. 785.)

      J. N. Fortner and W. A. Carter, for plaintiffs in error.
    Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

The plaintiffs in error, hereinafter called defendants, were convicted in the county court of McCurtain county on a charge of transporting whisky, and were each sentenced to pay a, fine of $50 and to serve 30 days in the county jail.

The record discloses that at the time charged a federal prohibition officer saw defendants driving on the highway, and that he turned his car across the road for the purpose of stopping them, and that he saw one of them throw a half gallon jar of whisky out of the car and break it. He did not arrest them, but a few days later a state officer filed a complaint. Only one witness as to the facts was called by the state. Each of the defendants testifies that they were stopped by the federal officer as testified. Both denied that they had possession of any whisky or that they threw anything from the car. Before going into trial, defendant Abercrombie filed an affidavit praying for a continuance on account of the illness of his married daughter who lived with him, stating that she was ill at his home, that on the day before the trial her child had been buried, and that on account of this the defendant Abercrombie had' been unable to prepare for trial. Under this showing, a reasonable postponement of the trial should have been granted. The matter was not so urgent as to require this defendant to be pushed into trial immediately; to do so was an abuse of discretion.

The case is reversed and remanded.


text:
    EDGAR McCLANAHAN v. STATE.
    No. A-6127.
    Opinion Filed Sept. 1, 1928.
    (269 Pac. 782.)
    W. A. Carlile, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Sequoyah county on a charge of larceny of domestic animals, and his punishment fixed at imprisonment for a term of five years.

All the assignments of error go to the sufficiency of the evidence to sustain the verdict and judgment. Briefly stated, the record discloses that E.XE. Gragg had two head of cattle taken from the range, and learned that a firm of butchers, Leach & Cassidy, at Sallisaw, had possession of cattle answering the description. He went there and found his cattle and recovered them. Cassidy testified that he bought these cattle from defendant, and this is admitted. A witness Trimble testified that about this time he saw defendant and one Honeycutt driving cattle answering this description upon a byroad near where they ranged. At the time of his arrest, defendant told the sheriff in the presence of the witness McLaughlin, that he had bought the cattle from a Delaware Indian. Upon the trial, defendant testified he bought the cattle from Charley Wallace in the presence of Lon Honeycutt, Jack Holt, Fred Payne, and Wallace Payne. Wallace Payne was a brother-in-law of defendant. Charley Wallace, from whom defendant claims he bought the cattle, was not produced as a witness. The evidence for the state is in part circumstantial, and the entire testimony is conflicting. There is, however, sufficient evidence which, if belWed by the jury, amply sustains the verdict and judgment. It is well settled that, where there is evidence, although conflicting, from which the jury may reasonably and logically find a defendant guilty, its weight and sufficiency is for the jury, and this court will not disturb the judgment for insufficiency of the evidence.

The case is affirmed.

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


text:
    URV GROFF v. STATE.
    No. A-6049.
    Opinion Filed Sept. 8, 1928.
    (269 Pac. 1061.).

      C. H. Madden and Stewart & Williams, for plaintiff in error.
    George F. Short, Atty. Gen., and Leverett Edwards, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted in the district court of Harmon county, on a charge of grand larceny, and his punishment fixed at confinement in the state penitentiary for a term of three years. Motion for new trial was filed, overruled, exceptions duly saved, and the case appealed to this court for review.

The state called Raymond Keith, who in substance testified as follows: That in the fall of 1924 he lived on a farm six miles north of Hollis, Okla., and was raising cotton; that he ginned some cotton at the Long Gin Company of Hollis; that he began ginning about the 23d of October, 1924, and the first bale ginned by him was by the gin company numbered 1,621, which bale he left in the gin yard in the possession of the Long Gin Company; that the gin company furnished him the number of the bale, and he left the bale in the gin yard, the gin ticket was No. 1,621, weight 490 pounds; that the cotton yard number on the bale, as he remembered it, was 13,572. On cross-examination he stated the next time he saw his bale of cotton was on thie 24th day of December; it had no cotton or paper tag on it; the law had an investigation mark on it. The only identification he had to it being his bale of cotton was by the number the gin company had given him and records of the cotton yard.

C. D. Henderson, called as a witness for the state, testified he was bookkeeper for the gin company, and as part of his duties he kept the record of the cotton received for ginning and the number of the gin weights, he identified the exhibit that had been introduced that showed bale No. 1,621, October 31, ginned by Mr. Keith, weight 490 pounds; that Mr. Keith came to him afterwards and stated that he could not find one of his bales of cotton, and asked him to check his records and see what bale was short, and he did so, and reported to Mr. Keith it was 1,621; there was a bale of cotton of that weight that had been tampered with, and identification marks destroyed; he stated they put a paper ticket and a metal tag on the bale of cotton that had been tampered with. The purpose of the double marking was for identification; in case the paper tag was torn off, they would still have an identification mark; that some time in December Mr. Keith presented the duplicate paper tag, the bale had been tampered with, and the tag torn off or lost off; “I don’t know whether 1,621 was torn off or not.” The record showed Mr. Keith ginned No. 1,621; no one else ever claimed the bale; the paper tag was first removed, and then the metal tag. “I put another metal tag on it, and it, too, was taken off. I then slipped a pasteboard in the tie. It disappeared in two or three days. I then took a slip of paper and dated it and signed it, and Mr. Long signed it and slipped it in the bagging.”

Witness was handed State Exhibit D, and asked to State what it was, and stated it was a slip of paper dated 11-29-1924, signed by C. D. Henderson and W. Long. This bale of cotton disappeared from the yard with this slip of paper under the bagging. It was finally recovered from the county cotton yard. The paper was concealed and could not be seen from the outside. This bale of cotton was the same bale of cotton that was taken off our yard. The county cotton yard numbered it 13,572. “I never sold the bale, nor did I buy it. The original number of this bale was 16-something; I don’t remember the other two figures. This bale, No. 13,572, has the same weight of 1,621, This bale was ginned October 23, 1924, or October 24, 1924, I don’t remember, and was removed from the yard on the 9th of December.”

On cross-examination he stated that he did not remember the number of bales of cotton that Mr. Groff, or the Groff family, had on the yard at that time.

Mr. Long testified in substance as did Mr. Henderson with reference to putting the number and date under the bagging, so it could not be seen, which was identified later in the county cotton yard as being the bale of cotton sold or delivered there by the defendant Urv Groff, and sold in the name ,of Frank Goad.

Frank Goad testified in substance that defendant did not sell any cotton for .him-, and had no authority to sell any, nor had any authority to sell any other cotton in his name, and that he did not receive any of the proceeds from the b¿le the defendant sold in his name.

There were a number of other witnesses called in behalf of the state, who testified to facts tending to corroborate Mr. Keith and Mr. Long.

The defendant, called as a witness in his own behalf, testified that, on the . date the bale of cotton was sold, he sold five bales of cotton to Mr. Bellah; that he sold four of them in the name of A. K. Whiteside, and the other in the name of Mr. Frank Goad, giving as his reason that the Cotton Growers’ Association had the cotton tied up, and he sold in the name of White-side and Goad in order to get the money to pay up what he owed; that he had a one-third interest in the five bales of cotton, that he had claimed this bale of cotton, and seen it in the yard for several weeks, and that he was not attempting to conceal his actions; that he moved the bale of cotton from the yard on the 9th day of December, 1924, at the same time he moved four other bales; that he had frequently sold cotton from off his father’s place, and the Whiteside place. Defendant denied that he had information that he heard or saw Mr. Bell attempting to locate this bale of cotton for Raymond Keith; denied he told Mr. Bell, on December 4th, that he knew whose bale of cotton it was.

B. P. Groff, the father of defendant, testified that he had about 11 bales of cotton on the yard at the time it was alleged the defendant took this bale, and that both of his boys were authorized to sell cotton.

There were a number of other witnesses, who testified to certain facts connected with this bale of cotton; but this is in substance all the testimony we deem necessary to set out.

Defendant has assigned seven errors, alleged to have been committed in the trial of the case, but in his brief he has argued only the third and fourth assignments, which are as follows:

“(3) Said court erred in overruling the demurrer of plaintiff in error to the evidence of the state.
“(4) Said court erred in refusing the peremptory-instruction requested by the plaintiff in error, defendant below.”

These two errors will foe considered together, as they both relate to the sufficiency of the evidence to sustain the conviction. Defendant urges that, in order to sustain this conviction, there are five main and essential propositions necessary to be established by the state beyond a reasonable doubt, before the court would be authorized to submit the case to the jury, and before a judgment of conviction could lawfully be rendered against the defendant.

The first proposition urged by the defendant is that the testimony is insufficient to show that defendant unlawfully and feloniously took the cotton without the knowledge or consent, and against the will, of Raymond Keith, the owner of the.cotton. The testimony of Raymond Keith is that the cotton was taken from the gin yard without his knowledge or consent, or that of the gin company.,. The second proposition necessary to establish is that Raymond Keith was the owner of the identical cotton described. The evidence tends to establish the ownership of the cotton alleged to have been taken in Raymond Keith. The third proposition is that the cotton,.if any was taken by the defendant, was a bale of cotton No. 1,621. The fourth proposition was that the cotton was of the value of more than $20; and the fifth proposition, that the cotton, if taken by the defendant, was taken by the defendant with the unlawful, intent to deprive the owner thereof. ; '

The evidence tends to -show that the bale of cotton found in the county yard was the bale of cotton that had formerly been No. 1,621, from which bale of cotton the tags had been removed on two or more occasions, and finally the officers and gin people wrote the date of the month and year, and had Mr. Henderson and Mr. Long sign their names on the paper. It was then put in the bagging of the bale of cotton, so it could not be detected. Concealed in the bale of cotton that was sold to Mr. Bellah by the defendant was found the paper that was dated and signed by Henderson and Long.

The proof clearly shows that the cotton was worth more than $20. The defendant was not the individual owner of any cotton in the yard. He offered some proof to show he had a one-third interest in some cotton with his father and brother. The testimony is sufficient to show that the cotton was taken with the intent on the part of the defendant to deprive the owner thereof. The record further discloses that if the defendant was short a bale- of cotton, as he attempted to show, he had failed to make the fact known to the owners of the gin or attempt in any way to locate the same. The defendant was in and around the gin yard often during the time this bale of cotton was in the yard. The proof further shows that some one kept removing the tags from this bale, and finally it was determined by the officers and gin owners to place a mark where It could not be seen. When the, bale disappeared from the yard, it was locáted in the county yard, where it had been sold and delivered to Mr. Bellah by the defendant.

The testimony in this case is sufficient to warrant the court in submitting the case to the jury, and the court did not err in denying the request of the defendant for a peremptory instruction. The evidence of the state, if believed, and the inferences logically drawn from it, amply prove the guilt of the defendant; the weight of the evidence and credibility of the witnesses is a matter within the province of the jury. The jury is in a better position to determine the truth or falsity of the testimony given, and where there is reasonable evidence to sustain the verdict this court will not disturb such verdict, notwithstanding there is some conflict in the evidence. Worley v. State, 31 Okla. Cr. 253, 238 P. 225; Valdez v. State, 18 Okla. Cr. 204, 194 P. 451; Cole v. State, 18 Okla. Cr. 430, 195 P. 901.

Finding no reversible error in the record, the judgment is affirmed.

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


text:
    GLENN TIPTON v. STATE.
    No. A-6060.
    Opinion Filed Sept. 4, 1928.
    (269 Pac. 1063,)
    W. M. Williams, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted in the county court of Greer county on a charge of having possession of mash fit for distillation, and the manufacturing and distilling of liquors, and was sentenced by the court to serve a term of 60 days in jail and to pay a fine of .$250 and costs. Motion for new trial was filed and overruled, and exceptions duly saved, and the case is appealed to this court.

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

E. T. Smith, sheriff of Harmon county, testified that he went with a party of officers, on the 6th day of November, 1924, to the home of this defendant in Greer county, .and they made a search in the pasture of the defendant, about three-quarters of a mile from defendant’s home; that they found car tracks around the field near the place where they found the still; they discovered these tracks about one-fourth of a mile from the defendant’s home, but did.not go to the defendant’s home to see if they went on to the house, that no one went to the defendant’s house until after they found the still and some mash; the country was rough and full of canyons, and the still and mash could not be seen from the home of the defendant; that there was a dim road going both north and south from near the still, and there were some car tracks near the still; that he had never seen the defendant until the time he was out to the defendant’s place; that the tracks that were near the still were both coming from the south and going back to the south; when they first observed the tracks, they were one-fourth of a mile from where the mash was found. The lay of the ground was broken, and the land had a gradual slope and some broken places between the house and still; it was lower at the still, and the ground at the back of the house was lower than the ground at the house. The witness also identified a cream can and still they found. On cross-examination, witness testified that they had no search warrant to search the home or curtilage of the defendant.

J. W. Ponley and C. M. Pickard, witnesses called on behalf of the state, testified in substance to the same facts as E. T. Smith.

The defendant, in his own behalf, denied any knowledge of the still and mash being where it was alleged by the officers they found it, denied any knowledge of how to make whisky, denied having anything to do with the making of whisky, denied having the milk can where the still was found, and denied having anything to do with the placing of the mash and still where they were claimed to have been found. The defendant further stated, at the time and for some days prior to the alleged search, his wife had been ill, and he had been around the house and at her bedside the greater part of the time, and also called several witnesses, who testified to his previous good character, and to the fact that his wife was sick at the time the alleged search of the premises was made. Defendant also showed that he had lived in that community for 20 odd years, and this was the first charge that had been brought against him; he showed that he was a farmer, and owned about 400 acres of rough land, containing many canyons and hollows, and stated positively that he did not have anything to do with the mash he was charged with having in his possession.

Several errors are assigned, and urged by the defendant for reversing this case. The first assignment of error urged by the defendant is:

“The trial court erred in overruling the motion of the defendant for a new trial.”

This assignment practically covers all of the other assignments. The testimony in this case is mostly circumstantial, as no one saw the defendant in actual possession of the mash, but it was found .on land owned by him, and was known as pasture land, about three-quarters of a mile from his home. At the still there was found a milk can, with the name of J. F. Tipton on the tag. It was shown that J. F. Tipton was the father of the defendant, and that the defendant two years previously bought the farm from his father.

Effort was made by the state to trace whisky to the home of the defendant; E. T. Smith going so far as to state that he was about 100 yards from the house, and that he smelled whisky, a most remarkable statement, if true. No whisky was found about the house, but an effort was made to show that some was found on the curtilage near the home — that a jar was found that had the odor of whisky. All of which testimony was objected to by the defendant, the objections overruled, and defendant duly excepted.

The testimony with reference to the odor of the whisky, while incompetent and improperly brought out, we do not think prejudiced the rights of the defendant upon a charge of having possession of mash, which was found upon the defendant’s land. The record discloses that, when the verdict was brought in by the jury, and the jury failed to fix the punishment, the defendant asked the court to direct the jury to return to the jury room and to fix the punishment, and the court overruled the motion, and the defendant duly excepted. The jury in its verdict found the defendant guilty, and then inserted the following words:

“But fail to agree upon his punishment and leave the same to the court.”

Under our statute it is the duty of the court to submit the punishment to the jury, if requested by the defendant. In this case the record discloses the request was not made until after the jury had returned into open court its verdict, but leaving the punishment to be fixed by the court. If the defendant desired the jury to fix the punishment he should have made the request when the court instructed the jury, and before the jury retired from the courtroom to consider its verdict. The verdict returned by the jury in this case is not so informal as to require it to be corrected, and we do not think the court committed error in refusing to direct the jury to return to the jury room and fix the punishment, after the verdict had been returned by the jury into open court and read.

We think the evidence in this case sufficient to warrant the court in submitting the question of the guilt or innocence to the jury, and the jury, having heard the evidence, and had an opportunity to judge the demeanor of the witnesses on the stand, are the sole and exclusive judges of the weight to be given to the testimony. Where there is any competent evidence to sustain the verdict of the jury this court will not interfere.

We think the testimony sufficient to sustain the verdict of guilty, but in view.of the record in this case, and the motion of the defendant to have the jury fix the punishment, and in view of the previous good record of the defendant, we believe the ends of justice would be properly met by modifying the sentence imposed on the defendant, from 60 days in jail and a fine of $250, to imprisonment in the county jail for 80 days and a fine of $100, and the judgment, as so modified, is affirmed.

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


text:
    CHARLEY CLANTON v. STATE.
    No. A-6307.
    Opinion Filed Sept. 8, 1928.
    (269 Pac. 1104.)
    Mounts & Chamberlin, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted in the district court of Tillman county, on a charge that he did, knowingly, unlawfully, wrongfully, and feloniously desert and abandon his wife, Annie May Clanton, and was sentenced to imprisonment in the state penitentiary for a period of one year, from which judgment and sentence defendant has appealed to this court.

The petition in error, together with the case-made, was filed in this court July 12, 1926. Under the rules of this court, where an appeal is not supported by brief, and no appearance is made by the plaintiff in error, it is assumed that the plaintiff in error has abandoned his appeal or that the same is without merit.

A careful examination of the record discloses that the information charges an offense; that the evidence is sufficient to sustain the verdict; that instructions of the court were fair to the defendant, and that there are no fundamental errors prejudicial to the rights of defendant.

The j'udgment of the trial court is affirmed.

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