text:
    E. J. BRADLEY v. STATE.
    No. A-7874.
    Opinion Filed March 21, 1931.
    (296 Pac. 1113.)
    Justin Hinshaw and Hardin Ballard, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted in the county court of McClain county on a charge of possession of mash for the manufacture of intoxicating liquor, and was sentenced to pay a fine of $100 and imprisonment in the county jail for 60 days. No brief has been filed in support of the assignment of errors.

The evidence reasonably sustains the verdict and judgment. No new question is presented. No error requiring a reversal is made to appear.

The case is affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    O. A. BROOKS v. STATE.
    No. A-7754.
    Opinion Filed March 21, 1931.
    (296 Pac. 1114.)
    Jesse H. Dunn, for plaintiff in error.

      J. Berry King-, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the connty court of Murray county on a charge of selling intoxicating liquor, and was sentenced to serve a term of 30 days in the county jail and to pay a fine of $50.

The evidence reasonably sustains the verdict and judgment. No new question is presented. No error requiring a reversal is made to appear.

The case is affirmed.


text:
    JESSE BROWN v. STATE.
    No. A-7869.
    Opinion Filed March 21, 1931.
    (296 Pac. 1114.)
    C. L. Clearman, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted in the county court of Beckham county on a charge of possession of whisky, and was sentenced to pay a fine of $350, and imprisonment in the county jail for 90 days. No brief has been filed in support of the assignment of errors.

The evidence reasonably sustains the verdict and judgment. No new question is presented. No error requiring a reversal is made to appear.

The case is affirmed.


text:
    N. CERVANTEZ v. STATE.
    No. A-7748.
    Opinion Filed March 21, 1931.
    (296 Pac. 1114.)
    Hulsey & Hulsey, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Pittsburg county on a charge of having the unlawful possession of intoxicating liquor, to wit, choctaw beer, and was sentenced to' pay a fine of $50 and to serve 30 days in the county jail.

The record discloses that defendant, a youth 19 years of age, lived with his aunt. A search of her premises disclosed some 12 gallons of choctaw beer. Under the entire record we are of the opinion that the evidence is not sufficient to sustain the verdict and judgment as to this defendant.

The case is reversed.


text:
    DAMON CROUCH v. STATE.
    No. A-7776.
    Opinion Filed Feb. 16, 1931.
    (296 Pac. 1114.)

      Claud Briggs, W. H. Brown, and R. C. Garland, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter referred to as defendant, was convicted in the district court of Latimer county of manslaughter in the first degree, and was sentenced to serve a term of five years in the state penitentiary.

Prom the judgment of conviction the defendant appealed to this court. The appeal was perfected on March 26, 1930, by filing in this court petition in error with case-made attached. Since the appeal was taken and before final submission of the cause, said defendant departed this life as show;n by statement of the attorney of record for defendant.

It appearing to the court by affidavit that the defendant, Damon Crouch, is dead, it is therefore considered, ordered, and adjudged that the case be abated, with directions to the trial court to enter its appropriate order to that effect.


text:
    DEWEY CUSTER v. STATE.
    No. A-7936.
    Opinion Filed March 21, 1931.
    (296 Pac. 1115).
    J. V. Crawford, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State. -
   PER CURIAM.

The plaintiff in error was convicted in the county court of Okfuskee county of having the unlawful possession of intoxicating liquor, and was sentenced to pay a fine of $50 and to serve 30 days in the county jail.

Judgment was entered upon a plea of guilty. No motion for a new trial was filed. No question is presented by the appeal.

The case is affirmed.


text:
    LEROY FOSTER v. STATE.
    No. A-7891.
    Opinion Filed March 21, 1931.
    (296 Pac. 1115).
    Floyd Wheeler and J. C. Evans, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, Leroy Foster, was convicted in the county court of Okmulgee county, on a charge of possession of intoxicating liquor and was sentenced to pay a fine of $500 and confinement in the county jail for a period of 180 days. No brief has been filed in support of the assignment of errors.

The evidence reasonably sustains the verdict and judgment. No new question is presented. No error requiring a reversal is made to appear.

The case is affirmed.


text:
    JOHN HAMILTON v. STATE.
    No. A-7880.
    Opinion Filed March 21, 1931.
    (296 Pac. 1116.)
    L. F. Robertson, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted in the county court of Woodward county on a charge of selling one-half pint of whisky, and was sentenced to imprisonment in the county jail for a period of 30 days and pay a fine of $100. No brief has been filed in support of the assignment of errors.

The evidence reasonably sustains the verdict and. judgment. No new question is presented. No error requiring a reversal is made to appear.

The case is affirmed.


text:
    SPECK (DAVID) KIRKPATRICK v. STATE.
    No. A-7741.
    Opinion Filed March 21, 1931.
    (296 Pac. 1116.)
    J esse H. Dunn, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Murray county on a charge of transporting whisky, and was sentenced to serve a term of 30 days in the county jail and to pay a fine of $50. The evidence sufficiently sustains the verdict and judgment. No new question is presented. No error requiring a reversal is made to appear.

The case is affirmed.


text:
    CHARLEY ROTH v. STATE.
    No. A-7740.
    Opinion Filed March 21, 1931.
    (296 Pac. 1117.)
    Jesse H. Dunn, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Murray county on a charge of manufacturing intoxicating liquor, and was sentenced to pay a fine of $50 and to serve 30 days in the county jail.

The case appears to have been rather poorly tried, and the record is not in good shape. No new question is presented. The evidence sustains the judgment, and no prejudicial error appears.

The case is affirmed.


text:
    JOHN THOMPSON v. STATE.
    No. A-7900.
    Opinion Filed March 21, 1931.
    (296 Pac. 1118.)
    Grisby & Page and T. J. Hinshaw, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted in the county court of Cleveland county on a charge of transporting intoxicating liquor, and was sentenced to serve a term of 30 days in the county jail, and to pay a fine of $50. No brief has been filed in support of the assignment of errors.

The evidence reasonably sustains the verdict and judgment. No new question is presented. No error requiring a reversal is made to appear.

The case is affirmed.


author: CHAPPELL, J.

text:
    CLINT BLASDELL v. STATE.
    No. A-7710.
    Opinion Filed Feb. 28, 1931.
    Rehearing Denied March 21, 1931.
    (296 Pac. 758.)

      Williams & Allen, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for tbe State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Atoka county of the crime of larceny of live stock, and his punishment fixed by the court at imprisonment in the state penitentiary for seven years.

The evidence of the state was that W. M. Baskett was a ranchman and the owner of a large number of cattle; that on the 10th day of October, 1928, a dark red muley cow was missing from his herd and was later found in the possession of one E. Vanbibber, near Perry, Okla. Bas-kett positively identified this cow as the one missing from his herd, and testified that it was taken without his knowledge or consent.

George Price, the father-in-law of defendant, testified that in Atoka county, on the 10th day of October, 1928, at about 2 o’clock in the morning, he saw the defendant load two. cows on a trailer, and that one of these was a dark red muley cow, and that she was taken to the Price place near Perry; that the other cow was unloaded in Oklahoma City; that defendant said the red cow was too thin to butcher, and that he would take her up to witness’ place and let them feed her a while; that later that cow was sold to Vanbibber.

Other witnesses testified that defendant admitted to them that he had stolen the cow from Baskett; that Bas-kett had offered a reward, and that he was going to have to steal her from Vanbibber and take her back or it would get too hot for him: that Baskett had offered $25 reward, and he would steal the cow and take her back and collect the reward; that it was easy to steal cattle and sell them and make a good living; that he had a butcher at Perry who would take 20 head of cattle a week and kill and dispose of them.

Defendant did not take the witness stand.

The evidence of the state was sufficient to show beyond a reasonable doubt that the defendant was guilty as charged in the information.

No substantial error appearing, upon the record, the cause is affirmed.

DAVENPOBT, P. J., and EDWABDS, J., concur.


text:
    CLINT BLASDELL v. STATE.
    No. A-7709.
    Opinion Filed Feb. 28, 1931.
    Rehearing Denied March 21, 1931.
    (296 Pac. 757.)
    Williams & Allen, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Atoka county of the crime of larceny of live stock, and his punishment fixed by the jury at imprisonment in the state penitentiary for 10 years.

The evidence of the state was that on the 1st day of October, 1928, W. M. Baskett was the owner among other cattle of one dark red steer, about six months old, weight about 600 pounds, branded “A Z,” open “A” on the left shoulder and “Z” on the left thigh, with right ear cropped off; that this steer was taken in Atoka county Avithout his knowledge or consent.

George Dunafee, testifying for the state, said that he was living at Perry, Okla., with his grandfather, whose name was Price, and was there at the time of the theft of the steer in question; that about the time of the theft defendant brought two steers to his grandfather’s place; that one steer had horns about four inches long, that his right ear was off, and that he had an “A” and “Z” brand on his thigh and shoulder; that the defendant and one Stanislaus, a butcher at Perry, killed this steer on his grandfather’s place and later put the carcass in a Ford with a box and hauled it off; that after the steer had been butchered, defendant took a shovel and scooped up the blood; that when asked by the witness why he did this defendant answered “To keep down suspicion”; that he carried this blood down behind the bam and threw it away.

Other witnesses testified to' being present at other times when defendant admitted that he had stolen this animal with others from the complaining witness.

Defendant contends, first, that this evidence was insufficient to support the verdict of the jury, but this contention is without any merit.

He next contends that the punishment assessed by the jury is excessive.

The maximum punishment provided by law is 10 years in the state penitentiary. The jury had a right to assess this punishment, since it was within the limit prescribed by law. The fact that the jury may assess the extreme penalty is no ground for reversal of the case. Where the evidence is weak, or where it discloses that it is a first offense, this court might consider such matters and reduce the punishment; but where, as in the case at bar, it appears that the defendant is engaged in the commission of crime as a business and means of livelihood, we cannot say the punishment is excessive. Certainly in aggravated cases society is entitled to be protected against further crime against it. Punishment is inflicted to restrain and reform criminals and to protect society by deterring others from committing similar offenses.

For the reasons stated, the cause is affirmed.

DAVENPORT, P. J., and EDWARDS, J., concur.


text:
    R. R. KINSEY v. STATE.
    No. A-7682.
    Opinion Filed March 6, 1931.
    Rehearing Denied March 28, 1931.
    Application for Leave to File Second Petition for Rehearing Denied April 4, 1931.
    (296 Pac. 1002.)

      Trice & Davidson, I. M. King, J. P. Crawford, and Tom D. McKeown, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Pontotoc county of the crime of robbery with firearms, and his punishment fixed by the court at imprisonment in the state penitentiary for eight years.

Th evidence of the state was that George M. Mayhue, the prosecuting witness, was engaged in business in the city of Ada; that he became acquainted with the defendant’s wife through her negotiating with him for a loan On some real estate; that the prosecuting witness left Ada one evening and started to his brother’s ranch and parked his car by the side of the road some little distance from Ada; that defendant’s wife apparently by previous arrangement came in another car to where prosecuting witness’ car was parked and got in his car, and together they drove some distance down the road and stopped; that in a short time the defendant, accompanied by Dan Elam and Homer Sorrels, drove by in another car, and defendant jumped out of the car and poked a pistol in the prosecuting witness’ face and began to curse and threaten to' kill him; that after some talk, defendant demanded $5,000 in settlement of his damages or he would kill prosecuting witness; that when advised prosecuting witness did not have the money, he was compelled to drive his car back toward Ada, with defendant and his wife sitting in the back seat and defendant menacing him with a pistol; that finally defendant caused the car to be stopped and offered to take $2',500; that the prosecuting witness was compelled to write two checks for $1,250 each upon certain Ada banks, and that thereupon the prosecuting witness was kept a prisoner and menaced and cursed until time for the bank to be opened, and that prosecuting witness was then compelled to drive his car to the vicinity of one of the banks and was compelled to remain in the car while Elam menaced him with a pistol and while the defendant went to the bank and cashed the checks; that as soon as the checks were cashed, prosecuting witness was released and permitted to go; that he delivered the checks to the defendant through duress and fear of death at the hands of the defendant, Elam, and Sorrels; that on the same day the defendant and his wife left Ada and went to Oklahoma City and other places and remained together until their arrest.

Defendant testified that he caught the prosecuting witness in a car with his wife, and that he jumped on the running board and covered him with his gun and threatened to shoot him and cursed him; that after considerable argument and driving some distance, the prosecuting witness said he wanted to settle it, so defendant had the car stopped and made the prosecuting witness get out of his car and loaded prosecuting witness’ gun and said: “I will lay my gun down here and you can take your gun and take one shot before I touch my gun, and we will shoot it out right here, and he laid it down on the ground and prosecuting witness said I wouldn’t touch that gun for a million dollars.” That thereupon prosecuting witness offered him $500 to settle the case, and they finally agreed on $2,500; that the prosecuting witness borrowed some checks at a filling station and wrote them out and gave them to defendant; that when they got down to the bank he handed the prosecuting witness his gun and went on in the bank and cashed the checks.

Defendant strenuously insists that the facts in the case, if they establish anything, establish a charge of extortion, and not robbery with firearms.

There is a direct conflict in the evidence; that on the part of the state constituting robbery with firearms, and that upon the part of the defendant indicating extortion. The jury must have believed the evidence of the state, since they returned a verdict of guilty under proper instructions of the court.

Defendant relies upon the case of McKeown v. State, 34 Okla. Cr. 381, 246 Pac. 659, where this court said:

“Where any person, by extortionate means, obtains from another his signature to any paper or instrument, whereby, if such signature were freely given, a debt, demand, charge, or right of action is created, the offense is ‘extortion’ and not ‘robbery.’ ”

The facts in this case are radically different from those in the case at bar. Here not only did the defendant by means of a pistol and by threats of force and violence compel the prosecuting witness to execute the checks and deliver them to defendant, but also kept the prosecuting witness in duress and by means of threats caused him to take the defendant to the immediate vicinity of the bank, and there, while the prosecuting witness was threatened by a pistol held in the hands of Elam and restrained from making any outcry or objection, defendant cashed the checks, and the prosecuting witness was not released until the money was obtained upon the checks.

The case at bar more properly seems to fall under the rule laid down in Tipton v. State, 23 Okla. Cr. 87, 212 Pac. 612, 31 A. L. R. 1074, where this court said:

“Where one points a pistol at another, and with threats and menace of death compels the person assaulted to leave the presence of the one making the assault to' procure money and property, which, when procured, is delivered to the person making the assault, while the person assaulted is under continued fear and duress, this constitutes robbery under the circumstances outlined in the opinion.
“The taking of something of value from another by means of force or personal fear is the gist of the offense of robbery. Whether the motives leading up to the robbery grew out of avarice, revenge, or other like motive is immaterial, and the court committed no> error in refusing to permit an extended examination touching such motives.
“In a robbery case, where the taking of the property is for the purpose of forcibly collecting uncertain un-liquidated damages as compensation for an alleged felonious assault on the taker’s wife, such forcible taking may constitute robbery and does not come within the rule that the forcible taking and retention of the property of another for the purpose of paying or securing the payment of a debt might not be deemed robbery.”

In the case at bar the checks for $2,500 were actually procured by this defendant and the money obtained on them while the “duress by means of firearms continued.”

There is no dispute in the evidence but that Mayhue had possession of these checks before they were delivered by him to the defendant. The only material controversy on the question of fact from a legal standpoint is this: Mayhue testified that he delivered these checks while under duress of firearms in the hands of Kinsey and Elam. Kinsey and Elam testified that Mayhue parted with said checks voluntarily and that no firearms were used.

The evidence of the state and the circumstances surrounding the transaction show that the defendant with Elam and Sorrels conspired with the defendant’s wife to rob the complaining witness and set a trap to catch him and the woman as an excuse for taking the money.

The evidence being sufficient to support the verdict of the jury, the cause must be affirmed unless the errors complained of by the defendant require a reversal.

Defendant next contends that the court erred in refusing to give certain requested instructions of the defendant. The instruction given by the court on its own motion in substance included the requested instructions of the defendant.

No substantial error appearing, upon the record, the cause is affirmed.

DAVENPORT, P. J., and EDWARDS, J., concur.


author: DAVENPORT, P. J.

text:
    C. C. MURRAY v. STATE.
    No. A-7884.
    Opinion Filed Feb. 28, 1931.
    Rehearing Denied March 28, 1931.
    (296 Pac. 1004.)

      J. Allen Andrews, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter called the defendant, was convicted of having possession of one-half gallon of whisky with the willful and unlawful intent on the part of the said C. C. Murray to barter, sell, give away, and otherwise furnish and dispose of the same in violation of the prohibition laws of the state of Oklahoma, and was sentenced to pay a fine of $250 and be imprisoned in the county jail for 60 days. From which judgment and sentence the defendant has appealed.

Before the case was called for trial, the defendant filed a motion to suppress the evidence on the ground that the same was unlawfully secured by the officer for the reason that the officer had no warrant of arrest nor warrant to search the defendant. The motion to suppress was overruled and the defendant duly excepted.

The testimony on behalf of the state shows that Charley Dymond was a deputy sheriff in Seminole county on the 5th day of August, 1929. Dymond stated:

“I was in Seminole on that day for the purpose of serving some papers; I was in front of the Electric Battery Station or Shop, talking to Jack Porter; the defendant drove up in a Ford coupe and handed Porter a package wrapped in a newspaper; he handed it to Jack Porter and I took it out of Jack Porter’s hands; the package contained a half gallon of whisky; I arrested the defendant. Mr. Murray asked me to file the charge against him in the city court as Jake Simms was Ms friend. The first I saw of the package was when Mr. Murray banded it to Jack Porter.”

On cross-examination witness stated:

“I saw a man drive up there and hand out a package and I took charge of it; Mr. Murray had delivered the package to Jack Porter before I got hold of it; Mr. Porter said Mr. Propham ordered it from Murray; I did not have any warrant for Mr. Murray’s arrest; I told him I was an officer but not until I got the stuff; I did not see any money; the liquor was wrapped up in a newspaper, part of the jar was exposed; I took hold of the jar and the paper dropped off of it; the package I took from Porter is the same one that Murray handed to Porter; I had an idea what it was; I had to examine the jar before I knew it was whisky. The liquor is upstairs.”

No testimony was offered by the defendant. At the close of the state’s testimony, the defendant demurred to the evidence of the state for the reason that the same is wholly insufficient to constitute a cause of action against the defendant for the reason that the state failed to make out a case. The demurrer was overruled and the defendant duly excepted.

The defendant requested the court to instruct the jury to return a verdict in favor of the defendant for the reason that the officer did not have a warrant for the arrest of the defendant, and that the arrest was made in violation of law, and for several other reasons. Which motion was overruled and the defendant duly excepted.

Several errors have been assigned by the defendant as grounds for reversal of this case. The first assignment is that the court erred in overruling defendant’s motion for a new trial. All of the errors assigned will be considered under tbe first assignment of error. It is urged by the defendant that this case should be reversed for the reason that the officer arrested the defendant for the commission of a misdemeanor without a warrant for his arrest or to search his person. This contention would be tenable were it not for the fact that the officer saw the defendant deliver the package to Jack Porter, and immediately and in the presence of the defendant took the package from Porter, which was found to contain a one-half gallon container full of whisky. The authorities cited by the defendant are not in point, as they relate exclusively to a state of facts where the defendant was stopped and searched by the officers without having a warrant for the arrest of the party or to search his person. The court did not err in overruling the motion of the defendant to suppress the evidence, the demurrer to the evidence, and in refusing to direct the jury to return a verdict of not guilty against the defendant.

All of the testimony contained in the record tends to show that the offense charged in the information was committed in the presence of the officer; defendant was charged with having possession of intoxicating liquor for the purpose of bartering, selling, giving away, and otherwise furnishing and disposing of the same in violation of the prohibitory liquor laws. The testimony of the officer tends to show that the defendant in this case drove up to where he was talking to Jack Porter and delivered to Porter a package in the presence of the officer which contained the one-half gallon container full of whisky.

The evidence is sufficient to sustain the judgment. There being no fundamental or prejudicial errors in the record, the judgment is affirmed.

EDWARDS and CHAPPELL, JJ., concur.


text:
    GUS SPRADLING v. STATE.
    No. A-7712.
    Opinion Filed March 14, 1931.
    Rehearing Denied March 28, 1931.
    (296 Pac. 1004.)
    Wilkinson & Wilkinson, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Stephens county of the crime of the unlawful sale of intoxicating liquor, and his punishment fixed by the jury at a fine of $300 and imprisonment in the county jail for 30 days.

The information charged the defendant with the sale of intoxicating liquor to one Earl Clark, who was called as a witness by the state. Clark testified that he went to the home of defendant about 11:30 at night for the purpose of buying whisky, if defendant had any; that he drove up to the corner of defendant’s house, at the dining room door, and got out and went to the screen door and knocked on the door and said, “Hello this is Earl Clark, I want a little bottle, like that”; that he stood outside of the screen door and somebody got up from around in the house and threw a flash-light in his face he supposed to see who it was; that then they turned the light out and went into another room and he stepped inside the screen; that he knew tbe defendant and bad been there before delivering groceries and got a drink; that in about a minute somebody banded bim a bottle and be banded them $2, and when be got out to tbe car tbe officer jerked tbe wbisky out of bis band.

Tbe sheriff testified that be saw Clark come out of tbe bouse with a bottle in bis band, and took it away from bim, and that it contained wbisky; that be bad a search warrant for the place, and back of tbe henhouse be found two half-gallon jars of wbisky.

Tbe defendant took tbe stand and denied tbe sale of whisky; said his wife was up and around tbe bouse, and that if she delivered any wbisky to Clark be did not know anything about it, but admitted that be bad twice pleaded guilty in tbe federal court to tbe sale of intoxicating liquor.

While tbe evidence is wholly circumstantial, it is sufficient to support tbe verdict of tbe jury.

For tbe reason stated, tbe cause is affirmed.

DAVENPORT, P. J., and EDWARDS, J., concur.


text:
    GAYLORD HARTMAN v. STATE.
    No. A-7328.
    Opinion Filed March 6, 1931.
    Rehearing Denied March 28, 1931.
    (296 Pac. 999.)

      Tom Payne, for plaintiff in error.
    J. Berry King, Atty. Gen., and Ed Crossland, Asst. Atty. Gen., for tbe State.
   DAVENPORT, P. J.

Tbe plaintiff in error, hereinafter referred to as tbe defendant, was convicted of seduction, and sentenced to tbe reformatory at Granite for a term of five years at bard labor, and to pay the cost of tbe prosecution. Prom which judgment the defendant has appealed to this court.

It is not deemed necessary to set out in full tbe testimony in this case. Tbe testimony on behalf of tbe state shows that tbe prosecutrix, Dorothy Rose Marks, was introduced to tbe defendant, Gaylord Hartman, during tbe year 1925. They became sweethearts and were engaged to be married. Tbe prosecuting witness testifies that tbe defendant appealed to her, and, under promise of marriage, bad sexual intercourse with her; that later they were estranged and were not together for several months; in 1927 they were together again, and in February, 1927, they bad intercourse, as tbe result of which she gave birth to a child. Considerable testimony was introduced as to tbe contemplated marriage between tbe defendant and tbe prosecuting witness, which tends to' show that tbe defendant was about 17 years of age at tbe time of tbe engagement to the prosecutrix; that his mother and father would not give their consent to their marriage. There is no dispute as to their going together, nor is there any dispute as to their becoming engaged in the fall of the year 1925. The prosecutrix testified positively to an agreement to many, and that she yielded to the persuasions of the defendant after their engagement solely and only on his promise of marriage. The defendant denies he at any time had sexual intercourse with the prosecutrix, and called several men and boys and attempted to show misconduct of the prosecutrix with other parties. A careful reading and study of the testimony of some of the boys who testified against the prosecutrix shows an absence of knowledge about which they testify, and their testimony is vague and uncertain and given after direct questioning.

The prosecutrix testified that she had not had intercourse with any other man but the defendant, and that the defendant was the father of her child. This is the substance of the testimony.

The defendant has assigned 20 errors alleged to have been committed ’by the court in the trial of his case. The first assignment is that the court erred in overruling defendant’s demurrer to the information. The information sufficiently charged the defendant with the crime of seduction, and the state had the right to prove the commission of the crime within three years from the filing of the charge against the defendant. The information charged that the crime was committed on the......day of February, 1927; the information was filed August 27, 1927. 35 Cyc. 1341, says:

“The fact that an indictment for seduction fails to allege the exact time of the commission of the offense within the period of limitations does not render the indictment insufficient, since time is not a material ingredient of the offense.’’

That part of the information that it is deemed necessary to cite is as follows:

“That the said Gaylord Hartman, at and in the above named county and state, did on the.day of February, 1927, unlawfully, willfully and feloniously, under the promise of marriage seduce and have sexual intercourse with one Dorothy Rose Marks, an unmarried female of previous chaste character, not then and there the wife of the said Gaylord Hartman.”

While the information does not give the date in February that it is alleged the seduction took place, it does charge that it was in February, 1927. The prosecutrix testifies that the defendant first had intercourse with her at Mrs. Cummings’ home in July, 1925. In Martin v. State, 35 Okla. Cr. 248, 250 Pac. 552, in the third paragraph of the syllabus, the court said:

“An information which informs an accused of the offense with which he is charged with such particularity as to enable him to prepare for his trial, and so defines and identifies the offense that, if convicted or acquitted, he will be able to defend himself against any subsequent prosecution for the same offense, is sufficient.”

The information in this case sufficiently pleads every element essential to charge the crime of seduction, and this court has repeatedly held that, where this is done, the information is sufficient. Teague v. State, 13 Okla. Cr. 270, 163 Pac. 954.

It cannot be successfully argued that the defendant in this case did not know he was charged in the month of February, 1927, with the crime of seduction under a promise of marriage. The information charges sufficient facts, and the court did not err in overruling the demurrer of the defendant.

The defendant further complains that, when the regular panel of jurors was exhausted, the court ordered the bailiff to call six jurors from the audience in the courtroom, to which order of the court the defendant excepted.

Section 3518, C. O. S. 1921, provides for the manner of summoning talesmen and special venires. In this case there is no showing that the rights of the defendant were injured by reason of the order of the court directing the bailiff to summon the six jurors from the bystanders, and, in the absence of any specific showing that the rights of the defendant were injured, we hold that the court ordering the six talesmen summoned from these bystanders was not an error possessing merit sufficient to warrant a reversal.

It is next contended that the testimony is insufficient to sustain the crime of seduction. The defendant cites a number of authorities to sustain his position. The defendant argues that he cannot reach the conclusion that there was an absolute unconditional promise of marriage. The testimony of the prosecutrix in this case shows a promise of marriage, and not only was there a promise of marriage, but she made preparations to get married by buying her clothes. The mother of the defendant was called in and the question of the marriage discussed. The mother protested on the ground that her son was too young to get married. The testimony on the question of a promise of marriage and cohabitation is conflicting; the testimony on the part of the state being positive as to what promises were made and under what circumstances cohabitation took place; on behalf of the defendant that he had not had intercourse with the prosecutrix. There was also an attempt made by the defendant to show that the character and reputation of the prosecutrix was had, and that she had been guilty of improper relations with other men. The boohs are full of such offers, made when a man is charged with having violated his promise and has been brought before the bar of the court to answer for his failure to carry out his promises to marry the girl, where defendants seek to break down the character and reputation of the prosecutrix. Courts do not look with favor upon such actions; yet it is a right the defendant has if he is not guilty to show by all competent evidence that he did not make the promise and was not guilty as charged by the prosecutrix. In this case the conflict in the testimony as to the guilt or innocence of the defendant was a question for the jury to determine, and, as disclosed by the record, the jury, after hearing all the testimony, found it was sufficient to convict the defendant. Where there is any competent testimony to go to the jury, this court will not disturb its finding.

It is next contended by the defendant that the instructions of the court did not correctly state the law as applied to the facts in this case, and that the defendant was deprived of certain testimony which was material to his case. We have carefully read the record and studied the instructions of the court. While some of the instructions are not models, yet, when taken in their entirety, they correctly stated the law as applied to the facts in the case.

We further find there is no merit in the contention of the defendant that the court excluded testimony material to his defense. The exclusion of the testimony complained of did not prejudice the rights of the defendant to such an extent as would warrant this court in reversing this case.

The real question in this case, to be determined on all the facts contained in the record, is, Did the defendant have sexual intercourse with the prosecutrix under a promise of marriage within three years prior to the date of filing of the charge in this case? If he did, he was guilty, and that controversy under the proper instructions of the court and the evidence contained in the record has been settled by the jury.

The judgment is affirmed.

CHAPPELL and EDWARDS , JJ., concur.


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    HENRY SANDERS v. STATE.
    No. A-7542.
    Opinion Filed March 6, 1931.
    (296 Pac. 764.)

      Clark & Jack Nichols and Monk & McSherry, for plaintiff in error.
    J. Berry King, Atty. Gen., and Edward Crossland, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter called the defendant, was convicted in Pittsburg county district court, of rape in the second degree, and his punishment fixed at seven years in the penitentiary. From which judgment the defendant appealed.

The substance of the evidence in this case tends to show that Henry Sanders and the prosecuting witness, Ruby Blair, lived in and near Eufaula, in McIntosh county, Okla.; that on October 20, 1928, the defendant drove to near the house of a Mr. Gilland and by previous arrangement met Mary and Jewell Gilland and Ruby Blair, who got in the car with him and drove to McAlester, Pitts-burg county, the prosecuting witness riding in the front seat with the defendant and the two Gilland girls in the rear seat of the car; when the parties reached McAlester the defendant gave the Gilland girls $2 and told them to go to the show; the defendant and Ruby Blair then drove south on the Jefferson Highway from a mile to two miles and turned off the main highway; after driving a short distance the prosecutrix claimed the defendant turned his car north and stopped the car, and took her in the back seat and had intercourse with her; they went back to McAlester and stopped at Keith’s filling station; the prosecuting witness was suffering severely and her condition was so serious that Hr. Barton was called, and he came to the filling station where Ruby Blair had been taken in by Mrs. Keith and placed on a bed; the doctor did not make a thorough examination of the prosecutrix, but gave her a hypodermic and advised them to take her to- a hospital and let her be examined; the prosecuting witness was not taken to the hospital after the hypodermic was administered, but the parties started from McAlester to drive to their home near Eufaula; at the town of Canadian the condition of the prosecutrix Ruby Blair was such that she required medical aid and they stopped there and called Dr. Lewellen; after Dr. Lewellen had administered to the girl, which was about 11 or 12 o’clock at night, the defendant, in a conversation with the doctor, stated that the condition of the prosecutrix was due to their having had sexual intercourse; the parties then went on to the Gilland home, the father of the two girls. The defendant carried the prosecutrix into the house. Dr. West of Eu-faula was then called and attended her, and remained with her much of the time until she was removed from the Gilland home to her home, which was about 6 o’clock the next afternoon.

The testimony shows that the defendant also told Dr. Barton at McAlester that he had had intercourse with the prosecutrix. The testimony of all parties shows that the prosecutrix was in good health when they left Eufaula, and that she made no complaint up to the time the Gilland girls left the defendant and prosecuting witness in Mc-Alester, the Gilland girls going to a picture show and the defendant and prosecutrix driving on south.

The first mention of the prosecuting witness complaining was when the defendant claims to have left the car a short distance to answer a call of nature, leaving the prosecutrix in the car, and when he came back he states she was complaining; the defendant denies he had intercourse with the prosecutrix, but admits he made the statement to the doctors in substance as testified to by them. Some testimony was introduced and the doctor was questioned as to the cause of the prosecutrix’s complaint, and an effort was made to show that the pains were caused by a miscarriage. The defendant paid the doctor bills at McAlester and Canadian; and it was shown that when the prosecutrix was taken into the filling station that she did not have on her shoes and stockings, or her bloomers; the defense undertook to prove that she took her shoes and stockings and her 'bloomers off; the prosecutrix testified that the defendant pulled her bloomers down.

The testimony tends to show that at the time of the alleged offense the prosecutrix was under the age of 16 years; this was shown by the father and mother, and also Dr. West; the defense offered testimony tending to show she was more than 16 years of age. The question of the age of the prosecuting witness was a question for the jury to decide.

There were only two questions raised in this case that need careful consideration: The first is, Was the prose-cutrix, at the time of the alleged offense, under the age of 16 years. And tbe next is, Did the defendant have intercourse with the prosecutrix with or without her consent. If she was under the age of 16 years and the defendant had intercourse with her, with or without her consent, he was guilty of the crime for which he was convicted.

The defendant has assigned several errors alleged to have been committed by the court in the trial of the case. The first error discussed by the defendant is the thirty-first assignment of error, which goes to the alleged misconduct of the county attorneys with reference to the introduction of State’s Exhibit A, which was a page of the school census. The defendant contending that, after the court held the page of the school census enumeration of the independent school district of Eufaula inadmissible for the purpose of proving the age of the prosecutrix, the said county attorneys repeatedly reoffered said record in evidence, and when they finally desisted therefrom they persisted, in the presence of the jury, in consulting the said objectionable record in the further examination of the age of the prosecutrix, and in the presence of the jury then and there framed further questions therefrom and thereby insinuating to the jury the contents of said objectionable, inadmissible, and theretofore barred record.

We do not think the record discloses error committed by the county attorneys in their effort to show the contents of the page of school census for the independent school district of Eufaula; the admission of this page of the record, if it showed a different date than that testified to by the father, mother, and Dr. West, who testified to the birth date of the prosecutrix, would, only have tended to bring out a further conflict in the testimony as to the age of the prosecutrix, and the question of its admission or rejection was immaterial and would not prejudice the rights of the defendant. Whatever the record offered and excluded would show was secondary evidence and hearsay, as it was a record made by the statements of the prose-cutrix or some one else at the time she entered school, and the party making it might have gotten an incorrect date.

From the testimony in this case there is positive evidence as to the date of the birth of the prosecutrix. It is further urged by the defendant that Milam B. King, county attorney of McIntosh county, at the request of the county attorney of Pittsburg county, took part in the trial, and his action in taking part in the trial at the request of the county attorney of Pittsburg county was without authority of law. This question was passed upon in a recent decision of this court. In Smith v. State, 37 Okla. Cr. 85, 256 Pac. 944, the syllabus of the court is as follows :

“Where the county attorney of the county in which an offense is triable institutes the proceeding and controls the trial of the case and performs all the official acts required to be performed by a county attorney, other counsel may properly be employed, and, with the consent of the county attorney, may appear and assist in the conduct of the trial. In like manner, the county attorney of another county may appear as private counsel, and, under the rules applying to private counsel, assist the county attorney of the county in the conduct of the trial.”

In this case the record does not disclose that the county attorney of Pittsburg county lost control of the case, or that Mr. King, the county attorney of McIntosh county, who assisted in the trial, was guilty of misconduct. The county attorney of McIntosh county, at the request of the county attorney of Pittsburg county, took part in the trial and was active in the prosecution of the defendant.

It cannot be successfully argued that, while the accused may employ the most able and talented attorneys to represent him, tbe citizens of a community cannot employ counsel, or that tbe court may not permit counsel to volunteer to represent tbe state. We do not tbint tbe assistance of private counsel in tbe trial of a criminal case is prohibited by law, and, where tbe county attorney, as in this case, properly institutes a criminal proceeding and controls tbe trial of a case, other counsel may properly be permitted to appear and examine tbe witnesses and assist in any manner in tbe conduct of tbe trial. Reed v. State, 2 Okla. Cr. 589, 103 Pac. 1042; Dunn v. State, 15 Okla. Cr. 245, 176 Pac. 86.

There being no showing that there is any conduct on tbe part of tbe county attorney from McIntosh county prejudicial to tbe rights of tbe accused, tbe error complained of by tbe defendant is without merit.

Tbe defendant in bis 29th assignment of error complained that one of tbe witnesses, Sonny Price, from McIntosh county, was arrested during the trial, and after tbe trial was closed the county attorney of McIntosh county appeared before tbe justice of tbe peace and dismissed tbe case. There is nothing in tbe record to- show that tbe arrest of tbe witness was made in tbe presence of tbe jury, during tbe trial of tbe case, or in tbe courtroom, or that tbe jury bad any knowledge whatever that an arrest bad been made until after tbe case bad been submitted to- tbe jury; therefore tbe rights of tbe defendant could not have been prejudiced by tbe arrest of tbe witness.

The affidavit of the juror, Victor P. Buell, shows conclusively that tbe jurors paid no attention when tbe bailiff told them tbe witness Price bad been arrested, and the jury was not influenced by tbe statement. Tbe bailiff violated tbe instructions of tbe court in making any statement to tbe jury, but, in view of tbe absence of any showing that the statement influenced the jury, it did not prejudice the rights of the defendant.

The defendant complains in his 83rd assignment of error that the county attorneys of McIntosh and Pitts-burg counties were guilty of' misconduct in the argument to the jury when Mr. Watson criticized the defendant, for the reason that, when on the witness stand, in his own behalf, the defendant did not state that the prosecuting witness was over 16 years of age, and did not state the prosecuting witness had told him she was over 16 years of age. This argument of the county attorney was proper for the reason the defendant had testified in court, and it was only an illustrative argument that the defendant, while on the stand, had not stated the girl was 16 years of age, or that she had told him she was 16. The argument was such an argument as the attorneys prosecuting had a right to make, yet it was immaterial and did not prejudice the rights of the defendant, for the reason that the defendant had denied he had had intercourse with the prosecutrix. In Crowell v. State, 42 Okla. Cr. 392, 276 Pac. 518, in the second paragraph of the syllabus, this court said:

“A conviction will not be reversed for alleged misconduct of the prosecuting attorney, unless this court can see that the prosecuting attorney was not only guilty of misconduct, but that such misconduct might in some degree have influenced the verdict of the jury.”

The testimony of the prosecutrix, her father, mother, and Dr. West shows that she was under the age of 16 years. The defense attempts to contradict this. The prosecu-trix states positively that the defendant had intercourse with her while on the drive south of McAlester. The defendant admitted to the doctors that he had sexual intercourse with the prosecutrix; on the witness stand he denied he had had intercourse with the prosecutrix. The jury beard the testimony of the witnesses and had an opportunity to judge of their demeanor while on the stand, and after considering their testimony found the defendant guilty. This court has often held that, where there is any competent testimony upon which the court would reasonably find the defendant guilty, it would not disturb the verdict. The testimony is sufficient to sustain the verdict.

There are several errors assigned by the defendant that have not been discussed. After a careful consideration of these errors we hold that they possess some merit, but not sufficient merit to warrant a reversal of this case. The circumstances in this case are unusual, and the testimony shows that the suffering of the prosecutrix after the alleged intercourse was not altogether caused from the intercourse alleged to have taken place, 'but that the indications were that she had had a miscarriage. In view of the testimony in this case and the circumstances surrounding the alleged offense, and the condition of the prosecutrix when examined by the doctors, it appears that the punishment is excessive, and should be modified to a sentence of four years, and, as so modified, the judgment is affirmed.

EDWARDS and CHAPPELL, JJ., concur.


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    BURNELL REED et al. v. STATE.
    No. A-7711.
    Opinion Filed March 6, 1931.
    Rehearing Denied March 14, 1931.
    (296 Pac. 530.)

      E. W. Snoddy and A. J. Stevens, for plaintiffs in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiffs in error, hereinafter called defendants, were convicted in the county court of Woods county of the crime of unlawful possession of intoxicating liquor, and their punishment fixed by the jury at a fine of $50 each and imprisonment of each in the county jail for a period of 30 days.

The evidence of the state was that the officers had located a 50-gallon barrel of beer mash in a catalpa grove some distance from the city of Alva, and had been watching the same for a day and a night; that at about 12:30 o’clock on the nght of July 23d, while the officers were watching this beer, the defendants, with Mortimer Welch and Eldon Shuffelbarger, came to the place where the officers were watching the beer, in a car and a truck, the truck being loaded with 20 cases of empty bottles; that the defendants unloaded these cases of bottles around the barrel, and, while they were there working, the officers arrested them; that the state had samples of this beer analyzed; and that it contained 4 1/10 per cent, of alcohol by volume.

Defendant Reed testified that he loaned his truck to Welch to haul the empty cases out, and that Welch told him that he would give him some beer to help him. Crow-ell testified to practically the same thing, and both admitted that they helped unload the cases and put them around the barrel and knew the beer was there, but denied that they owned it or had any interest in it.

Welch had escaped trial by leaving the country.

Defendants contend, first, that the evidence is insufficient to support the verdict of the jury. There is no merit in this contention.

Defendants next complain of the instructions of the court. Considered altogether, they fairly state the law as applicable to the facts in the case and were sufficient.

For the reasons stated, the cause is affirmed.

DAVENPORT, P. J., and EDWARDS, J., concur.


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    J. C. CAIN v. STATE.
    No. A-2551.
    Opinion Filed March 28, 1931.
    (297 Pac. 316.)
    Cress & S. Clair and J. W. Culwell, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was charged by information that he did willfully, knowingly, and feloniously keep and maintain a place on lots 8 and 9, in block 42, of tbe town of Forgan, Okla., where malt, spirituous, vinous, and fermented liquors, and imitations and substitutes therefor, were kept for the purpose of sale, bartering, giving away, and otherwise furnishing to others, was tried and convicted, and his punishment fixed at a fine of $100 and confinement in the county jail for 40 days, from which judgment the defendant appeals.

The state offered testimony tending to show that the defendant had been selling intoxicating liquor, and, over the objection of the defendant, it offered in evidence the search warrant that had been issued by the magistrate to search the premises of the defendant. The defendant denied he had anything to do with selling any whisky, and that he had knowledge that whisky was kept or possessed on his premises.

Several errors are assigned by the defendant, but the only error that it is deemed necessary to consider is assignment No. 8, which reads as follows:

“The court erred in admitting incompetent, irrelevant and immaterial evidence which was prejudicial to the defendant.”

The statements in the search warrant tend to establish facts very material against the defendant. In admitting the search warrant the court erred. Williams v. State, 34 Okla. Cr. 359, 246 Pac. 895; Weeks v. State, 41 Okla. Cr. 95, 270 Pac. 858; Ford v. State, 45 Okla. Cr. 161, 282 Pac. 370.

The view we take of this record makes it unnecessary to consider the other questions in the case.

For the reasons stated, the case is reversed.

CHAPPELL and EDWARDS, JJ., concur.


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    CARL FLANAGAN v. STATE.
    No. A-7721.
    Opinion Filed March 28, 1931.
    (297 Pac. 318.)
    M. F. Hudson, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

Plaintiff in error was convicted in the district court of McCurtain county of the crime of a second and subsequent violation of the prohibitory liquor laws, and his punishment fixed by the court at a fine of $1,000 and confinement in the state penitentiary for 90 days.

Defendant contends that the evidence of the state is insufficient to support the verdict of the jury.

The information charged the defendant with the sale of one pint of whisky to C. J. McDougal and O. R. Holcomb, but does not allege any price or thing, of value given for such whisky.

Neither one of the boys alleged to have purchased this whisky was called as a witness by the state, and the other witnesses testifying admitted that they did not see the sale and did not know whether the defendant made one or not. This evidence was insufficient to establish the guilt of the defendant beyond a reasonable doubt.

The proof of the state having wholly failed, the cause is reversed.

DAVENPORT, P. J., concurs. EDWARDS, J., absent and not participating.


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    OVEY BEASLEY v. STATE.
    No. A-7713.
    Opinion Filed March 28, 1931.
    (297 Pac. 324.)
    W. L. Ratliff, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

Plaintiff in error was convicted in the district court of Johnston county of the crime of rape, and his punishment fixed by the court at imprisonment in the state penitentiary for 15 years.

Judgment was rendered on the 27th day of May, 1929, and the appeal filed in this court on the 22d day of January, 1930; no briefs have been filed, and no appearance made for oral argument.

The appeal was not filed until more than six months after the rendition of the judgment. Where the appeal is not filed in the time provided by law, this court obtains no jurisdiction.

The appeal is therefore dismissed.


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    DAVE REED v. STATE.
    No. A-7758.
    Opinion Filed March 28, 1931.
    (297 Pac. 327.)

      W. L. Johnson, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Lincoln county of the crime of grand larceny, and his punishment fixed by the jury at imprisonment in the penitentiary for a term of one year and one day.

The evidence of the state was that the defendant, together with Clarence S. Evans and Ed. Naff, left the city of Chandler in Reed’s automobile at about 10 o’clock in the morning and drove to the town of Prague, where Evans and Naff entered the general store of one Thomas, while Reed stayed in the car which was parked near the store; that while Naff had a clerk showing him shoes in the back of the store, Evans stole 19 pieces of silk underwear; that in making the trip from the store to the automobile Evans dropped one piece on the sidewalk in front of the store, and that he placed the 18 pieces so stolen in the car, under the back cushion, while the defendant sat in the front seat; that none of these stolen articles were wrapped; that one White, who had a store in Prague, saw the piece of stolen underwear drop on the sidewalk, picked it up, and carried it to the Thomas store, and there learned that none of it had been sold; that, before Thomas and White could reach defendant’s car he and Evans drove about four blocks; that Thomas and White followed this car out to the end of the street and back to the front of the Thomas Hotel, where Naff was standing; that White and Thomas drove up by the side of defendant’s ear and ordered them to get out, which they refused to do; that White reached in and lifted the cushion in the back seat and there discovered the stolen underwear which had been taken out of the Thomas store, and which White and Thomas had seen put in defendant’s automobile.

It is admitted by counsel for defendant that Evans and Naff stole the underwear from the Thomas store, but it is contended that the evidence against the defendant is wholly insufficient to sustain the conviction.

In the case of Good v. State, 21 Okla. Cr. 328, 207 Pac. 565, 566, 29 A. L. R. 1029, this court said:

“One who joins with a thief and assists in the aspor-tation and disposal of stolen property, knowing at the time he does so that the other acting with him is in the act of carrying away the property of another is equally guilty of the larceny.” Brown v. State, 7 Okla. Cr. 678, 126 Pac. 263; Reed v. State, 22 Okla. Cr. 141, 210 Pac. 311.

Under the law above quoted, it was for the jury to determine Avhether or not the defendant’s connection with his codefendants, Evans and Naff, was an innocent one, or whether, if innocent in its inception, he was at least guilty of entering into' the incomplete asportation of this property with knowledge that Evans was in the act of stealing the same.

We cannot agree with counsel that this evidence did not warrant a verdict of guilty from the jury. When all of the testimony and the facts and circumstances are considered together, they fairly establish the guilt of the defendant.

Defendant nest contends that the court erred in permitting White and Thomas to1 testify to the discovery of the stolen goods in the defendant’s car.

These witnesses were not officers, but were private citizens; White had seen one of the stolen articles dropped to the sidewalk, and had seen the balance of the stolen articles put in defendant’s car; they were not acting under any authority from the state, nor did they present or represent themselves to be officers at the time they looked in defendant’s car and took possession of the stolen goods.

Section 2477, C. O. S. 1921, provides:

“A private person may arrest another:
“First. For a public offense committed or attempted in his presence.
“Second. When the person arrested has committed a felony although not in his presence.
“Third. When a felony has been in fact committed, and he has reasonable cause for believing the person arrested to have committed it.”

Under authority of this section, White and Thomas were authorized to arrest the defendants, or could have detained them until the officers could be called.

The rule as to search and seizure is more liberal when applied to private citizens than when applied to public officers. It has been held that the constitutional provisions do not run against private citizens, but only against public officials while pretending to act under process or under their authority as public officers. Cohn v. State, 120 Tenn. 61, 109 S. W. 1149, 17 L. R. A. (N. S.) 451, 15 Ann. Cas. 1201; Boyd v. U. S., 116 U. S. 619, 6 S. St. 524, 29 L. Ed. 746; Adams v. New York, 192 U. S. 586, 24 S. Ct. 372, 48 L. Ed. 577.

Under the facts as revealed in this case, White and Thomas could take possession of the goods they knew to be stolen and detain the defendants, and the evidence obtained under these circumstances was admissible against the defendant.

The other errors complained of by defendant have been carefully considered and found to be without sufficient merit to require discussion in this opinion.

For the reasons stated, the cause is affirmed.

DAVENPORT, P. J., concurs. EDWARDS, J., absent, not participating.


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    N. L. PENNINGTON v. STATE.
    No. A-7725.
    Opinion Filed March 28, 1931.
    (297 Pac. 330.)
    W. A. Barnett and A. E. Graham, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter called the defendant, was convicted of having possession of a still, and was sentenced to pay a fine of |300 and be imprisoned in the county jail for 90 days, from which judgment the defendant has appealed.

The testimony on behalf of the state, in substance, is as follows: C. E. Simpson stated he was a deputy sheriff—

“I went to the defendant’s home on the 4th day of May, 1929, and asked him if certain parties had been to his house the night before, and if they got anything to drink, and the defendant said, ‘No’; I told him I wanted to look around, did not have a search warrant; did not need one, he said; we looked around the house and went out to the bam and found mash and a still covered with a wagon sheet; he opened the 'barn door and helped us carry it out; the still appeared to be in working order.”

The defendant then moved to strike all the testimony of the witness for the reason that it was shown he was on the premises of the defendant and made the search in violation of the defendant’s constitutional and statutory rights, which motion of the defendant was overruled, and defendant duly excepted.

On cross-examination, witness stated he told the defendant he came out to talk to him; said they wanted to look him over; did not have any search warrant.

The defendant testified in his own behalf, and stated:

“When the officers came out to my house they called me out in the yard and said they wanted to talk to me; I walked out into the yard and the witness Simpson walked in my house; a man by the name of iStuart asked me if taxi driver Johns had been to my house Friday night, and I told him ‘No’; Stuart rushed back in the house and said, ‘You got choc beer?’ and I said, ‘I haven’t’; ‘got any whis-ky?’ and I said ‘No’; did not invite them in to my home or on the premises; did not invite them to make any search; they said they were going to look me over; I did not try to prevent them; I knew they were officers and knew what they might do to me; they had guns .strapped to their side; said they come to look me over. It is true I took my key and unlocked the barn door.”

On cross-examination, the defendant stated:

“I told them I was not at home on Friday night; that my wife had gone to a school meeting. I plead guilty once to possession of whisky. I had a can but I did not have a still; had two barrels of mash.”

The defendant’s wife testified, in substance, to the same facts as defendant testified as to what the officers did and said when they came to their home:

“One of the officers asked me if taxi driver Johns brought a woman out to my house Friday night; I did not hear them say anything about searching or examining the premises.”

The defendant has assigned several errors alleged to have been committed by the court in the trial of his case. The first assignment is that the court erred in overruling his motion to dismiss the case, and suppress the testimony of the state. It is urged by the defendant that his motion to dismiss should have been sustained for the reason that the search of the defendant’s premises was made in violation of his constitutional rights as a citizen of the state of Oklahoma, and in support of his contention the defendant. cites the following cases: Buxton v. State, 37 Okla. Cr. 402, 258 Pac. 814; Cosby v. State, 30 Okla. Cr. 294, 236 Pac. 51; Id. 30 Okla. Cr. 405, 236 Pac. 906; Smith v. State, 33 Okla. Cr. 344, 244 Pac. 52.

In Cosby v. State, supra, in the second and third paragraphs of the syllabus, the court said:

“.Search of private residence, not coming within exceptions in section 7013, C. S. 1921, was illegal.
“Evidence obtained by a search of the defendant’s residence, in violation of the constitutional protection against unreasonable search and seizure, is inadmissible against him.”

The authorities cited by the defendant involve the question of a valid search warrant. In this case there was no search warrant. The officer who made the search testifies as follows:

“We told him we wanted to look around; didn’t have a search warrant; don’t need any, he said; we went to the barn and he said it was in there, and opened the door and helped us carry it out.”

The defendant testified for himself and denied that he made the statement testified to by the state’s witness. The constitutional right against the unlawful search is personal and may be waived, and the view we take of the record under the testimony it was a question for the jury as to whether or not the defendant did voluntarily waive his constitutional right. Baker v. State, 85 Okla. Cr. 62, 248 Pac. 846.

The court in its instructions properly submitted this question to the jury, and the jury’s verdict is supported by the evidence.

There are other questions raised, but none of them present any material error.

The case is affirmed.

CHAPPELL, J., concurs. EDWARDS, J., not participating.


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    BANKS STEVENSON v. STATE.
    No. A-7866.
    Opinion Filed March 28, 1931.
    (297 Pac. 328.)
    Jesse H. Dunn, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was jointly charged with Limón Williams of the crime of the larceny of one heifer of the bovine species, the property of Get Russell; was tried separately and convicted, and sentenced to be imprisoned in the state penitentiary for a term of two years. Prom which judgment the defendant has appealed.

The testimony of the state tends to show that there was taken from the place of the prosecuting witness one two year old heifer; the defendant and Limón Williams were charged jointly with the larceny of said heifer; Limón Williams, who was jointly charged with this defendant, was nsed as a witness for the state, and testified he and the defendant stole the heifer alleged to have been stolen.

Abe Mulkey, a witness called by the state, was permitted, over the objection of the defendant, to testify, in part, as follows:

“Q. What did Williams say? A. Williams said he got the yearling from Russell — had bought the yearling from Russell and that was about the extent. We talked quite a while, and I told him the best thing he could do was just to tell the truth about it.
“Q. Now, then, did he tell you how they got the yearling? A. Well, no, he said something about the way they got the yearling — it was drove up — drove the yearling out there but I don’t remember just what it was. I am not positive just what time he said it was. It was after he and Banks and Limón drove the heifer in.
“Q. What did they do over at Davis with the yearling?
“Mr. Dunn: Objected to as hearsay, incompetent, irrelevant and immaterial, as to what Limón told him.
“The Court: Overruled.
“Mr. Dunn: We object.
“Q. (By Mr. Powell) Was Banks Stevenson and Limón Williams together when they were talking to you there?
“Mr. Dunn: May it please your Honor, it is hearsay evidence — it is an accomplice — a statement made out of the presence of the other which is wholly incompetent.
“Mr. Powell: Mr. Dunn knows what the purpose of the question was for.
“Q. Was Banks Stevenson and Limón Williams together when they were talking to yon there? A. Banks Stevenson was in the front part of the car with Mr. Williams and Limón Williams was'in the back end with me, in the turtle back — it had a turtle back, if I remember right, and we were sitting back there.
“Q. Well, could Banks hear the conversation between you and Limón Williams? A. I don’t think so — I would not be positive — I don’t know whether he heard it or not.
“Q. Well, did you have any other conversation in their presence where they did hear? A. No.”

The contention of the state was that Limón Williams and the defendant, while acting together, stole the yearling. The statements of the witness Abe Mulkey as to the conversation had with Limón Williams shows that whatever conversation he had with Williams was after the larceny had taken place, the animal sold, and the money received, and was made in the absence of the defendant, after the conspiracy had ended. It is urged by the defendant that the statements of Williams to the witness Mulkey were prejudicial to his rights, and were inadmissible.

In Washmood v. U. S., 10 Okla. Cr. 254, 136 Pac. 184, the court held:

“If such evidence is to be admitted it must be proven first: that the conspiracy actually existed, and the declaration made must be in pursuance of a common design, but nothing said or done by one conspirator in the absence of the one on trial after the crime has been accomplished is admissible.”

In Wolfe v. State, 38 Okla. Cr. 412, 262 Pac. 505, this court, in the syllabus, said:

“Where two or more persons are jointly charged with the commission of a 'Crime, and only one of them is put upon trial, statements made by a codefendant after tbe termination of tbe conspiracy between tbe defendant and codefendants, if any existed, in tbe absence of the defendant on trial, are not admissible against defendant; and where such statements are prejudicial, their admission is reversible error.”

Tbe bolding of tbe court in Washmood v. U. S., and Wolfe v. State, supra, was cited with approval in Schuh v. State, 44 Okla. Cr. 275, 280 Pac. 869.

Tbe defendant testified be had nothing to. do. with tbe stealing of tbe yearling or selling it; tbe butcher to whom the yearling was sold stated tbe defendant was not present, and that he made tbe check payable to Limón Williams, tbe same name as tbe codefendant in this case.

It is further contended by tbe defendant that there is no corroboration of the accomplice, Limón Williams, other than tbe testimony of tbe witness who was permitted to testify over the objection of the defendant to conversation bad with Williams in the absence of tbe defendant.

After a careful examination we fail to find any testimony corroborating tbe accomplice as to tbe larceny of tbe animal alleged to have been stolen. This court has repeatedly held that there must be corroboration of an accomplice before tbe court will be warranted in affirming a judgment. Tbe corroborating evidence must connect or tend to connect tbe defendant with the commission of the crime. It must, not only show tbe commission of tbe offense and circumstances thereof, but must also implicate tbe accused in it. Fisher v. Territory, 17 Okla. 455, 87 Pac. 301.

In Finchum v. State, 40 Okla. Cr. 192, 267 Pac. 688, this court, in the syllabus, said:

“To allow a conviction to stand upon the testimony of an accomplice not corroborated by other evidence tending to connect defendant with the commission of the offense charged is a violation of section 2701, Comp. St. 1921; there cannot 'be a conviction unless there is proof of some substantial fact or facts tending directly or circumstantially to connect defendant with the commission of the offense aside from and without the aid of the accomplice’s testimony.”

The court erred in permitting the witness Mulkey to testify to statements made by the codefendant in the absence of the defendant. There is no competent testimony corroborating the codefendant Limón Williams. The testimony is insufficient to sustain the judgment.

The case is reversed.

CHAPPELL, J., concurs. EDWARDS, J., not participating.


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    ROBERT W. SEITSINGER v. STATE.
    No. A-7334.
    Opinion Filed March 28, 1931.
    (297 Pac. 312.)

      Walter Mathews, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was tried for grand larceny, and convicted of petit larceny, and was sentenced to pay a fine of $100 and be imprisoned in the connty jail for a period of 30 days, and has appealed to this court by transcript.

Two errors have been assigned by the defendant as grounds for reversal of this case. The first is:

“The court was without jurisdiction to hear and determine said cause, for the reason that more than one term of court had elapsed without giving him a trial, over his objection and exceptions without any cause being given for not trying him.”

And second:

“The court erred in overruling his motion to dismiss the prosecution.”

The record in this case shows that the information was filed on May 3, 1928, and on the 7th day of May, 1928, the defendant appeared in court for arraignment; waived the reading of the information; and pleaded not guilty. Both parties announced ready for trial; a jury was selected, impaneled, and sworn, and, after hearing the evidence and argument of counsel, returned into court and announced that they were unable to agree upon a verdict. The court ordered a mistrial, and the jury was discharged from further consideration of the case.

Thereafter, on the 15th day of October, 1928, the following order was entered in the case: “The case is passed.”

On the 4th day of February, 1929, the defendant filed his motion to dismiss, for the reason that the case was continued from the May term of court to the October term of court, over the objection and without the consent of the defendant, and that it was again continued from the October term of court on the application of the state, over the objection and without the consent of the defendant, and not on the application of the defendant. This motion was sworn to by the attorney for the defendant.

On February 4, 1929, the motion of the defendant to dismiss was overruled; defendant excepted. On the 9th day of February, 1929, the case was called for trial, which resulted in the defendant being convicted. Motion for new trial was filed, considered, and overruled. The only question to be considered in this case is the question, Did the defendant bring himself within the statute? Section 2913, C. O. S. 1921, reads as follows:

“If a defendant, prosecuted for a public offense, whose trial has not been postponed upon his application, is not brought to trial at the next term of court in which the indictment or information is triable after it is filed, the court must order the prosecution to be dismissed, unless good cause to the contrary be shown.”

The defendant, in support of his motion to dismiss, cites Bayne v. State, 43 Okla. Cr. 440, 279 Pac. 695. In the Bayne Case the record shows that the information was filed on the 3d day of June, 1926, that there was a July term of court, and that on the 11th day of October, 1926, the defendant filed a written demand for trial, demanding that he be placed on trial at the October, 1926, term of court. The case was tried on the 24th day of February, 1927. The defendant filed his verified motion to dismiss the cause, setting forth the terms of court that had been held since the information had been filed in his case, and that he had made a written demand for trial at the October, 1926, term of court, and his motion was sustained.

In this case the record fails to' show that the defendant, at any time prior to the filing of his motion, had filed a written motion or demand for trial. The only showing in the record is a notation that the case was passed.

In State ex rel. Davis v. Bayless, District Judge, 38 Okla. Cr. 129, 259 Pac. 606, in the syllabus, the court said:

“In the absence of a proper record affirmatively showing the contrary, the presumption is that the court had continued the case for a presumably lawful cause. The burden was on the defendant, in support of his motion to dismiss, to show that the laches was on the part of the state through its prosecuting officers; otherwise, the presumption is that the delay was caused by or with the consent of the defendant himself, and when on bail he must demand a trial or resist the continuance of the case from term to term. A defendant who has never demanded or been refused trial is not entitled to a discharge, under the constitutional provision (article 2, § 20) and the statutory provision (section 2913, Comp. ,St. 1921).”

The established rule of this court is that, in the absence of a proper record affirmatively showing the contrary, the presumption is that the court has continued the case for a presumably lawful cause. The burden is on the defendant, in support of his motion to dismiss, to show that the laches was on the part of the state through its prosecuting officers, otherwise presumption is that the delay was caused by or with the consent of the defendant himself, and when on bail he must demand a trial or resist the continuance of the case from term to term. A defendant who has never demanded or been refused trial is not entitled to be discharged. ■

The judgment is affirmed.

CHAPPELL, J., concurs. EDWARDS, J., not participating.


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    MARION MAGILL v. STATE.
    No. A-7611.
    Opinion Filed March 28, 1931.
    (297 Pac. 316.)
    Wieck & Armstrong and O. O. Jenkins, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter called the defendant, was tried in the district court of Kay county, on a charge of murder, and convicted of manslaughter in the first degree, and sentenced to imprisonment in the state penitentiary for a term of 60 years, from which judgment the defendant has appealed.

In the information the offense is alleged to have been committed on the 1st day of February, 1929. A petition in error, with case-made attached, was filed in this court on October 21, 1929. No brief has been filed by the defendant in support of his assignments of error; yet, notwithstanding the failure to brief the assignments, we have read the record with care to ascertain if the court followed the law in the admission and rejection of the evidence and its instructions to the jury.

The record discloses that the defendant went to his home, where his wife and a number of other parties were, and got into an argument with his wife about some casings which he claims he left at the place, and the wife insisted she knew nothing about them and had not disposed of them; the argument became heated, and the defendant drew his pistol and shot his wife, Marie Magill, to death.

The testimony on behalf of the defendant attempts to show that the shooting was an accident.

The instructions, when taken in their entirety, correctly stated the law as applied to the facts in the case. From an examination of the record we find there were no substantial or prejudicial errors committed by the trial court. The defendant was accorded a fair and impartial trial.

The judgment is affirmed.

CHAPPELL, J., concurs. EDWARDS, J., not participating.


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    GEORGE HOCHDERFER v. STATE.
    No. A-7744.
    Opinion Filed March 26, 1931.
    (297 Pac. 317.)

      H. W. Morgan, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted on a charge of selling intoxicating liquor to Carl Massingale, a minor under the age of 18 years, and was sentenced to pay a fine of $300 and be confined in the county jail for 90 days. From which sentence and judgment the defendant appeals.

The facts in this case show that the officers gave Carl Massingale, who was under the age of 18 years, a dollar to go to the defendant’s home and buy whisky from him; that the officers waited on the street near the home of the defendant until the boy came out of the defendant’s home and delivered to them the one-half pint of whisky he stated he had bought from the defendant, for which he paid him the dollar; the hoy represented to the defendant that he wanted to buy the whisky for his father who was in jail; that as soon as the boy returned to the officers they went to the defendant’s home and arrested him, and found on his person the dollar bill they had given the boy to buy the whisky with.

No'testimony was offered on behalf of the defendant. At the close of the testimony the defendant moved the court to instruct the jury not to consider any evidence obtained by reason of the search of the defendant, for the reason that the search was unauthorized and illegal; which motion was overruled, and the defendant duly excepted.

The defendant has assigned several errors as grounds foi reversal of his case. He argues that the section of law under which he was tried and convicted is unconstitutional and void, for the reason that it does not provide for a maximum jail sentence. The constitutionality of this section has been decided adversely to the defendant. Trimble v. State, 32 Okla. Cr. 175, 240 Pac. 329.

It is next argued by the defendant that the search of his person by the officer, who did not have a warrant for his arrest, or a search warrant, was illegal and void, and any testimony secured thereby was improperly admitted.

Section 2471, C. O. S. 1921, is in part as follows:

“A peace officer may, without a warrant arrest a person: First, for a public ofíense committed or attempted in his presence. Second, when the person arrested has committed a felony, although not in his presence. Third, when a felony has in fact been committed, and he has reasonable cause for believing the person arrested to have committed it.”

The charge against the defendant in this case is a felony. The testimony of the state shows that the prosecuting witness was a minor under the age of 18 years, and that he bought a half pint of whisky from the defendant, paying $1 for it; the officers saw him go to the defendant’s house without any whisky, and when he returned to them he had a half pint of whisky. Under the facts in the case the arrest and search of the defendant was not a violation of tbe defendant’s constitutional rights. The evidence clearly shows the defendant guilty.

The judgment is affirmed.

CHAPPELL, J., concurs. EDWARDS, J., not participating.


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    HOMER COX v. STATE.
    No. A-7461.
    Opinion Filed March 14, 1931.
    Rehearing Denied April 4, 1931.
    (297 Pac. 320.)
    Roy White and Hugh A. White, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Hughes county of rape in the first degree, and Ms puniskment fixed by the court at imprisonment in the state penitentiary for 25 years.

The evidence of the state was that the defendant and Bo McCullum induced Opal Smith, a young girl between 17 and 18 years of age, who is the prosecuting witness in this case, and one Ruby Woodruff, to get into an automobile with them for a drive about town; that the prosecuting witness was only casually acquainted with the defendant and at first refused to go, but finally got into the car; that Ruby Woodruff and Bo McCullum were intimate friends; that instead of driving around town, McCullum drove the car out into the country about 12 miles to a place known as the Rock schoolhouse, and McCullum and the Woodruff girl got out of the car and went into or around the schoolhouse, leaving the defendant and the prosecuting witness in the car; that after Ruby Woodruff and Bo McCullum had gone to the schoolhouse, defendant drove the car about 75 yards from the schoolhouse and stopped; that the prosecuting witness was dragged out of the car by defendant, who was threatening to break her neck and kill her; that he thereupon assaulted her and by force and fear overcame her resistance and had sexual intercourse with her; that defendant threatened to kill her if she made any outcry or told the other couple anything about it; that as soon as they got back to the prosecuting witness’ home she told her mother; that her father and others immediately took her tb a doctor, who examined her and found her throat scratched and bruised with finger marks, her legs bruised and mud on her shoes, and upon further examination found other injuries to indicate that she had been raped.

That at the time defendant was arrested, he inquired of the officers what the charge was and they told him rape, whereupon defendant said: “How could it be rape when she consented?”

Defendant admitted taking the prosecuting witness in the car and going with the others to the Eock schoolhouse, and admitted that he had attempted familiarities with her, but denied that he had had any sexual intercourse with her.

Defendant contends first that this evidence is insufficient to support the verdict of the jury.

The prosecutrix tells a reasonable and credible story and all of the physical facts and circumstances in the case, together with the statement of the defendant, “How could it be rape when she consented?” corroborate her and were sufficient to establish the guilt of the defendant beyond a reasonable doubt.

Defendant next contends that the county attorney Was guilty of misconduct in his argument to the jury.

The record shows the following proceedings to have been had:

“Mr. White: The county attorney has just stated to the jury that there is evidence in the record showing that there was scratches and mud upon the limbs of the prosecuting witness.
“The Court: He said ‘The leg of the prosecuting witness.’
“Mr. Fancher: Yes, sir, The leg.’
“Mr. White: On the leg of the prosecuting witness, and the defendant objects to that portion of this statement with regard to there being mud upon the leg of the prosecuting witness, and state that there is no testimony to that effect.
“The Court: The objection will be overruled.
“Mr. White: Exception.”

There is nothing in this statement of the county attorney or in the ruling of the court that would justify a reversal of this case.

The defendant further complains that the court erred in refusing to permit counsel for the defendant in his argument to' the jury to read excerpts from the case of Sowers v. Territory, 6 Okla. 436, 50 Pac. 257. Counsel attempted to read from this case, and, upon objection of the county attorney, the court refused to permit any law to be presented to the jury other than that given to the jury by the instructions. The objections of the county attorney were properly sustained.

The evidence being sufficient to support the verdict of the jury, and there being, no merit in the errors complained of by the defendant, the cause is affirmed.

DAVENPORT, P. J., and EDWARDS, J., concur.


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    MAY WILSON et al. v. STATE.
    No. A-7784.
    Opinion Filed April 4, 1931.
    (297 Pac. 826.)

      Tillman & Tillman, for plaintiffs in error.
    J. Berry King, Atty. Gen., and Edward Crossland, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the district court of Osage county of the crime of burglary in the second degree, and their punishment fixed by the jury at imprisonment in the state penitentiary for a period of two years.

The evidence of the state was that on the 11th day of June, 1929, defendants broke into and entered the home of John W. Davis and stole and carried away a grip containing various articles of clothing and jewelry of the aggregate value of $100.

Defendants admit entering the house and taking the property, but declare their intention was not to steal but to play a practical joke on one Glendenning, who they thought lived at that place; that they took the grip and contents and placed them under a culvert.

Defendants assign 24 alleged érrors of the trial court, but brief and argue but two questions.

First, that the evidence is insufficient to support the verdict of the jury.

Under this assignment defendants argue that the evidence of the state is insufficient to establish the unlawful intent of the defendants.

Direct evidence of the intent to commit crime is not necessary. It may be shown by indirect evidence, as well as direct, and intent is to be gathered from all of the facts and circumstances in the case. If the evidence of such intent be made to appear to the satisfaction of the jury beyond a reasonable doubt, that is all the law requires.

16 Corpus Juris, 773, states the rule:

“The elements of the offense may be established by circumstantial evidence, where direct evidence is not available.”

A person is presumed to intend the natural, probable, and usual consequences of his acts. People v. Moxley, 17 Cal. App. 466, 120 Pac. 43; State v. Asal, 79 Mont. 385, 256 Pac. 1071.

Where it is shown that the accused broke into and entered the house, it may ordinarily be presumed that he did so with intent to commit theft. Vickery v. State, 62 Tex. Cr. R. 311, 137 S. W. 687, Ann. Cas. 1913C, 514.

The question of the intent of the defendants was an issue submitted to the jury under the most favorable instructions, and the jury did not accept their explanation that they were attempting to play a practical joke. The jury seems to have reached the conclusion that that was carrying a joke too far.

A defendant may testify as to what his intent was, but the jury are not bound by his statement or explanation. People v. Martinez, 17 Cal. App. 579, 12 Pac. 786.

Defendants next contend that the court erred in permitting the state to introduce irrelevant, incompetent, and immaterial evidence prejudical to their rights.

The evidence objected to. went to the ownership of the grip and the articles or property therein contained. The taking of the property was not a necessary ingredient of the offense charged. The gist of the crime was the breaking and entering with intent to steal.

In State v. Simpson, 32 Nev. 138, 104 Pac. 244, Ann. Cas. 1912C, 115, that court said:

“The offense of house breaking under the statute (Comp. Laws, § 4713), making every person who in the daytime shall enter a dwelling house, with intent to steal, guilty of house breaking, is complete when the house is entered with the specific intent to steal, and the actual stealing or attempt to steal property therein is but evidence of such intent, and the allegation in the indictment of ownership of the property in the house is mere sur-plusage.”

An indictment which charges a breaking and entering with intent) to commit larceny is sufficient. It need not state whose goods defendant intended to steal. People v. Shaber, 32 Cal. 36.

The evidence being sufficient to support the verdict of the jury, and the errors of law complained of being without substantial merit, the cause is affirmed.

DAVENPORT, P. J., concurs. EDWARDS, J., absent, not participating.


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    ELMORE BLENDEN v. STATE.
    No. A-7695.
    Opinion Filed April 4, 1931.
    (297 Pac. 827.)

      H. A. Johnson, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Noble county of having the unlawful possession of intoxicating liquor and was sentenced to pay a fine of |200 and to serve a term of two months in the county jail.

The record discloses that the defendant, Elmore Blenden, was the operator of a filling station east of Morrison, Noble county. That on January 19, 1929, certain officers secreted themselves near the filling station of defendant, and a short time thereafter a car drove up in front of the station and defendant was seen to go across the road and return with a receptacle in his hand. Upon the officers seeing the defendant go into the front door of the station, they immediately ran to the window of the place and observed the defendant with a glass jug of whisky in his hands. The defendant upon seeing the officers through the window threw the jug to the floor and broke it. The officers came in and soaked the liquid up with a handkerchief which was preserved as evidence against the defendant. The defendant demurred to the evidence, which was overruled by the court.

The first contention made is that separate jury lists for the Billings and Perry districts of the county court were not furnished from which to draw the jury who tried the case, as required by section 3323, Comp. Stat. 1921, which created the two county court districts of Noble county. Section 3526, Comp. Stat. 1921, provides that a substantial compliance with the requirements of the statute in selecting jurors is sufficient, unless the defendant is deprived of some substantial right. There is no claim that the defendant was deprived of any constitutional or statutory rights by the method in which the jury was selected.

The nest contention made is that the evidence is insufficient. The sufficiency of the evidence is for the jury. The actions of the defendant in breaking the jug in the view of the officers would be sufficient circumstances upon which the case could go to the jury. Where an officer is in such a position that he is able to see liquor in the hands of a defendant in a public place and the liquor is hastily disposed of by destroying it, his action in so disposing of such liquor would be sufficient to create a reasonable inference that he was violating the law.

The case is affirmed.

CHAPPELL, J., concurs. EDWARDS, J., absent, not participating.