text:
    MAE BECKER v. STATE.
    No. A-9606.
    Opinion Filed Dec. 16, 1929.
    (283 Pac. 796.)

      D. E. Hodges and Wieck & Armstrong, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was jointly charged with Walter Martin, of the crime of murder; was tried separately and convicted of murder, and sentenced to imprisonment in the state penitentiary for life. Motions in arrest of judgment and for new trial were filed, considered, and overruled, exceptions saved, and the case brought to this court on appeal.

The testimony on behalf of the state, in substance, is as follows: Carl Reimer testified he was 23 years of age; he lived near Ponca City; on the 27th day of August 1927, he was rooming with Waldo Floyd Becker and Mrs. Mae Becker; Mrs. Becker being the defendant in this case;

“About noon August 27,1927,1 bad a conversation with the defendant in tbis case; sbe said she tried to get some money from her husband and be would not give it to her; he bad around $50 in bis pocket, and sbe was telling us how to get it; she would get him drunk at the dance and slip it out of bis pocket and slip it to one of us boys, and we could get away with it; Waldo Floyd Becker was working at the Empire Refinery at the time; be returned to bis home about 5:30 in the afternoon of August 27, 1927; there was some beer sitting around there to drink; Floyd Becker bad some beer with bis meal that evening; I left the bouse about 6:30, after I bad gotten through with supper; I returned to the house about 7:30; Blanche May of Ponca City was with me; we went in my room on the corner; there Avere five rooms in the house; there were two bedrooms on the east and two on the west; there was a kitchen built in the west end of the house; some of the rooms were not in a sense bedrooms, but were being used for bedrooms; there were three bedrooms, I guess; I used the one on the southeast corner; there was no connecting door between those two bedrooms on the south; after Blanche May and I came into my room I heard loud talking, sounded like there might be some trouble starting and I told her we had better leave, so we got up and left; we got about three blocks—three doors I mean—when I heard something like an explosion, it sounded like a shot, and she went on by herself and I turned and went back to the house; when I got back to the house I saw Walter Martin out in front of the house with a gun in his hand; I asked him what was going on, and he said, ‘I killed him;’ and I said, ‘Who,’ and he said, ‘Floyd;’ I said, ‘Let’s go back and see;’ and he said, ‘No, I have got to go,’ and I told him to come on back and let’s see if you killed him; he turned around and went back to the house then; when we went into the house Floyd was lying on the floor dead, and Mae was lying on him crying; I asked if he was dead and she said he was; when I turned around Martin had a gun in his hand and said, ‘Take this gun, and hit me with it,’ and I said, ‘no’; he turned and went into the other room, and when he came back his face was bleeding, I believe the blood was on the left side. I am not sure; Martin said, ‘Yon see this was in self-defense;’ I said, ‘No, I was not here, never seen anything;’ he asked me if I would stand by him, and I said, ‘I won’t know anything;’ he asked Mae if she would stand by him, and she told him she would; I then called the police.
“I don’t know what the defendant told the officers; I was not in the room much after they came; I did not see any pocketbook in the room.” On cross-examination witness stated he had been rooming at the Beckers’ about a month. “I stayed at the Cozart Hotel about a month before I moved down there; it was an ordinary thing to have some home-brew at Becker’s place; every once in a while we would have a bottle with our meal; I saw the deceased drink about two bottles that evening; we all drank the beer that was there, merely a social like drink; the loud talking I heard was between Mr. and Mrs. Becker; Mrs. Becker is. very deaf, you had to talk loud to make her understand; I could not understand any of the conversation between them; I heard her scream, and I left; I could not understand them, as they were two rooms away and the doors were shut. Mrs. Becker did not tell me why she wanted to get some money from her husband; she said that afternoon she tried to get $5 from him; when T had the conversation with her, it was right after dinner; I was around the house a part of the. afternoon but most of the time I was up town; I was not working at the time, prior to that I had been working for O. C. Trapp, a cement contractor. The dance at which this money was to be taken from Floyd Becker by his wife was a platform dance close to the Biver Bridge; I don’t know the name of the fellow that was giving it, it was about two miles from the bridge; the Becker home is about a mile west of the bridge/ probably close to two miles, this would make the dance between three and four miles from the Becker home, in Osage county; I had been to this place where the dance was going to be given once; Mr. and Mrs. Becker had also been there I think three or four nights before; I had never known Mr. Becker before I started living at the house, which was about 30 days prior to the trouble; there were two roomers at tbe Becker bouse at the time; I paid my room rent to Mrs. Becker; the drinks that were suggested to be given Waldo Floyd Becker were not to be anything but beer; that was all I knew about; there was no dope or drugs to put in it; it was set there before him, and he helped himself; it was set before all of us, and we helped ourselves; the last time I saw Becker alive he was not drunk. I testified in the preliminary hearing'; I don’t remember stating in the preliminary that I did not hear any conversation between the defendant and Walter Martin.”

Witness was asked if in the preliminary the following .question was asked him, and he gave the following answer:

“Q. All right, what did the defendant Mae Becker say? A. I don’t remember whether she said anything; she may have, she may not have; I would not swear to her saying anything.”

And the witness then said: “I don’t remember whether I testified to that or not; I don’t remember the question you read anyway.”

Witness further testified that his recollection had not been refreshed by any one concerning the conversation since the preliminary hearing. Witness was then asked the following question:

“Q. If this is your testimony given at the preliminary hearing, that was in fact your recollection at that time, wasn’t it? A. Yes sir. I guess my recollection at the preliminary hearing in September was more definite than it is now.”

Witness then stated:

“I was supposed to meet these people at the dance about 10 o’clock; I was going out with my brother; my brother was not in this deal; I was not going out to this dance in particular to get this money; there wa* never anything said about how much money I was to receive, nor did I bear anything said about wbat amount Martin would receive; there was nothing said about splitting the money or what was to be done with it if we could get it; I had known Walter Martin about two years; for about eight months I had known him real well; I first knew him at Granite Beformatory; both of us were doing time; I was in for grand larceny and Martin for car theft; Martin had been to Ponca City from about Monday or Tuesday until Saturday before the killing; I never heard the defendant say anything as the officers came in; I do not know who brought the beer to the house, nor did I know where it came from.”

B. B. Brown, called as a witness, testified he was a police officer in Ponca City; he was called to the house where the killing took place; he then described the house and the number of rooms in the house; he saw Carl Beimer and Walter Martin there; when he first walked into the X’oom the defendant was sitting on the bed; she dropped down over her husband and was crying.

“I took hold of her and pushed her back on the bed and! went to look the room over; defendant said she did not know who killed him; ‘I don’t know anything about it’; a second or so later she says: ‘God damn, we battled all over the room; just look how this room is torn up.’ ” Then she began moving her hand and broke down crying a little again; she said, using an oath, something about some one breaking up their home; Becker was dead at this time; the body was sent to the undertakers.”

On cross-examination witness stated at the time of the preliminary examination he had not said anything about the.pocketbook for the reason that:

“I was not asked about it; there was no money in the pocketbook I found; it had cards and papers in it; Judge Midcalf found some money in his shirt pocket on the left side; the pocket was not torn so far as I observed; other officers came and I told Sargent Barr and West to take the defendant to the police station; she did not have her shoes on; I told her to get ready and she did not make any effort to do so, and I told the boys to take her on; she seemed to be intoxicated at the time; they-found $50 in the shirt pocket of the deceased.”

Dr. A. S. Nucklos, called as a witness, testified to examining the body after it was dead; he found four wounds—

“What I believe to be the first shot fired from the pistol entered the neck to the back and to the outer side, running toward the spinal cord; another shot was about two inches below the left nipple; then another shot about two inches below the border of the ribs on the left side of a straight line down from the left nipple. The fourth shot was about the center of the stomach, kindly over the stomach proper; don’t misunderstand me, that is not the bowels, but the stomach proper; I found two of the bullets lodged under the skin; none of them came through.”

Sam W. Tulk testified, in substance, the defendant made a statement to me after she had been placed under arrest; Bob Brown,, the police officer, was present; it was after midnight, the night of the alleged killing; no coercion was used to make her give the statement, nor was any threat or violence used.

“I had her brought into my office about 1 or 1:30 o’clock in the morning and told her I wanted her to assist in clearing up the killing of her husband, and she said she did not know who killed him; I told her it appeared to me it was impossible for her to be lying right on the bed while her husband was being killed by the side of the bed, and her not know anything about it; she said she did not know who shot him, they must have walked by the door and shot him, she said while she was lying, on the bed she did not see anybody in the room; I asked her if he had an enemy that might slip into the room, and she still contended she did not know anything, about it; and finally she said, ‘well, just say I done it, I killed him, hang me for it;’ and I said, No, Mrs. Becker, I don’t think you did it, and we are not trying to cause you any trouble. We are trying to get the information from you; trying to find out who the guilty party is that killed your husband;’ and she said, dust say I done it,’ and she closed up and I saw there was no use talking to her any more, and I sent her back to bed and went ahead with my investigation; she never did tell me who did it. At the time I talked with her she was under the influence of liquor, but seemed to know what she was doing; she impressed me she was able to be investigated and talked to at that time.”

On cross-examination witness reiterated his statement that at the time he talked to her she showed she had been intoxicated.

At the close of the testimony the defendant moved to strike out the testimony of the witness, for the reason that the statement does not seem to have been voluntary, and that the defendant was not apprised of her rights before making the statement, and for that reason the defendant was incompetent at the time to make the same, which motion was overruled by the court, and defendant excepted.

Viva Masemore testified she was a cousin of the deceased Floyd Becker; witness was asked if she had a conversation with the defendant with reference to the deceased, which was objected to by the defendant, and overruled by the court, and the witness was permitted to answer, and stated she had; that defendant had been drunk one evening and stated she wanted her to help get some money or something. “I don’t remember just what it was over.” She said he made her so mad she ought to kill him, and that at some time she would. This statement was made in May previous to the killing in August. The defendant moved to strike out the answer, on the ground that the statement was too remote. The court, overruled the matter, stating he was leaving the weight of it for the jury.

On cross-examination witness stated she had stayed at Becker’s home; Mrs. Becker was sick, and that the witness, Mrs. Becker, and Becker all slept in the same bed; Mrs. Becker on one side of the bed, Becker in the middle, and the witness on the other side of the bed.

“The defendant asked me at one time to leave; Mrs. Becker did not wake and find me in a compromising position with Mr. Becker. I had been gone about two weeks and came back, and the defendant told me she believed I was in love with Becker, and said Becker and I were too intimate, and for that reason she would not let me stay there any longer; Mrs. Becker was in bed all the time I was there, which was about a week.”

The defendant, in her own behalf, stated her name was Mae Becker; she lived in Ponca City; was the wife of Waldo -Floyd Becker, deceased; she and Becker were married May 21, 1925; they had a home in Ponca City partly paid for; she had paid about $400 of the amount and Becker had paid the rest; they had never been given a deed to it.

“Viva Masemore was over there for a while, probably two weeks, and I made her leave because she was loving my husband; that is the only difficulty my husband and I really ever had; I never did intend to kill my husband; when my husband drew his pay check he would cash his check, or I would cash it; we did not have any trouble about money that way; I paid part of the bills and he paid part of them; the day my husband was killed at night I did not have any difficulty with him with reference to money matters, nor did I try to get any money from him that noon; I did not have any conversation with Carl Reimer with reference to getting any money, nor did I have any conversation with him with reference to getting my husband drunk; I did not say anything to Carl Reimer about getting my husband out to a dance and would steal the money and give part of it to him or Walter Martin; I do my own cooking and had the meal ready when my husband came from work that afternoon; I never noticed how much beer he drank; he was drinking home-brew; it was poured into a pitcher and on the supper table and any one who desired it could help themselves; we had supper at 5 o’clock, immediately after he came in from his work; I was cleaned up by 6 o’clock and we went to town to get Mr. Becker some cigarettes; we were only gone a few minutes, and when we returned I could not say whether Carl Reimer or Walter Martin were at home, because we had a bedroom to ourselves and when we left we always locked our own room, and they could go from, their room through the apartment to the bath; their room had an outside entrance; when we came back Mr. Becker and I drank some more beer; I don’t know whether Mr. Becker had been drinking whisky that evening or not; I don’t know what time of night my husband was shot; I did not have a gun; I could not say who did the shooting; immediately after the shooting Walter Martin told me he did it. I did not see Mr. Martin when the shooting actually occurred; it seemed like the shots all came in a bunch; Mr. Martin was not in the room; I was on the bed when the first shot was fired, they were right fast; I had nothing to do with the killing of my husband; immediately after the shots were fired my husband fell by the side of the bed on the floor; I jumped up from the bed and ran to him, his shirt was burning; I started to leave the room and go to call the police; I came to the door and met Mr. Martin; I don’t know when Mr. Reimer came in; Mr. Reimer and Mr. Martin must have been in the room shortly after the shots were fired; I did not know where Mr. Reimer and Mr. Martin were, I did not see them very much, they were back and forth, seemed to me like I was dizzy; there was nothing said in my hearing about an alibi or self-defense; I remember being taken to the police station ; I don’t know how long it was after my husband was killed; Mr. Brown came to the house shortly after my husband was shot; I do not remember having any conversation with him; I was so nervous and dizzy I don’t know what I said, I just told him to lay the blame or jolt on. me, I would take it.”

On cross-examination witness stated she was 25 years of age—

“When I was talking to Bob Brown I was excited and did not know what I was doing ; I told him I did not know who did the shooting; Walter Martin told me he did it; when the shot was fired my husband was jerking my hand; he was not trying to get the $50 out of my hand; no, sir, I did not get the $50 out of his pocketbook; I don’t know whether I was drunk or not, I was dizzy; the beer we were drinking that night my husband and I made, we did not go out west of Ponca City to get it; Viva Masemore and I had trouble about my husband and I ordered her away from the place; that is the only trouble my husband and I had.”

Witness was asked the following question:

“Listen Mae, ‘when your husband caught you having intercourse with Carl Reimer, did you have trouble then?’ ”

This question was objected to as being incompetent, irrelevant, and immaterial, and assuming.

“By the Court: Yes, we assume that he did.
“Q. Well, when your husband caught you and Carl Reimer, did you have trouble? Objected to as incompetent, irrelevant and immaterial. A. No, sir. My husband did not order Carl Reimer away from the house. My husband and I did not have any trouble and my husband compel Carl to leave the place.”
“My husband’s insurance was made out to his brother; I don’t know what amount it was, my husband told me the insurance was made to his brother; my husband drew his pay a few days before he was killed; I had money of my own to pay my lodge dues; I collected it from my room rent; at the time the shot was fired my husband was jerking me, he was standing up, I do not know what way he was facing when the first shot was fired; he was jerking me to get me off the bed; we had been fussing and fighting that evening; the trouble came up when I spilled some beer on his tie; we had not planned what particular place we would go that night, we were going to either a dance or a picture show; I did not tell Walter Martin or Carl Beimer I wanted some money from my husband and he would not give it to me and I wanted them to help me get it, nor did I tell them I was going to get him drunk at the dance and take the money away from him and give it to one of them and they could get away with it; I don’t know which one of the officers took me to the police station; I don’t know whether I rode or walked; I do not remember telling them I wanted to go back and get the money; if I mentioned money I don’t remember it; I do not know who the man was that fired the shot that killed my husband; he was not in the room; my husband and I had been fussing and fighting that evening about me spilling beer on his tie. Carl Beimer and Walter Martin drank some beer there with us; I don’t know whether the others got tight or not; I know I had plenty myself; I remember Sam Tulk talked to me about something, but I don’t remember what he said; when Walter told me he had shot my husband I don’t remember if he was bleeding or not; we were all drinking at the house while we ate our dinner; I have seen the pocketbook which you mention; he did not carry money in this pocketbook; he carried it in his shirt or his trousers; he had some old German or French money; there is nothing to the insinuation I had intercourse with Carl Beimer; my husband and I never did have any trouble on that subject.”

The witness was then excused, and the state announced it desired to recall the defendant for further cross-examination.

“I testified yesterday that I never had any trouble with my husband, but the only trouble we had was little family rows; some time about two weeks previous to the killing the officers came down to the house; I don’t know what they came for, whether my husband called them or not; he told me he called the officers; I do not know why he called the officers; my husband had been drinking.” Witness was asked if she had ever been convicted of a crime and answered: “No, sir, I was not convicted in the state of Kansas.”

The foregoing is, in substance, the testimony introduced on behalf of the state and defendant.

The defendant assigns 12 errors alleged to have been committed by the trial court. The assignments will be considered as they are presented by the defendant in her brief. The first assignments discussed by the defendant are assignments 9, 4, and 5, and a portion of No. 11, which assignments are as follows:

“No. 9. That the court erred in refusing to sustain the motion for a directed verdict of Not Guilty’ interposed by the plaintiff in error at the close of the introduction of all evidence introduced on trial of said cause, to which refusal the plaintiff in error duly excepted.
“No. 4. That said verdict is contrary to the evidence.
“No. 5. That said verdict is not supported by the evidence.
“No. 11. That the court erred in refusing to give certain instructions requested to be given by the plaintiff in error, to-wit: Requested instructions numbered 6:
“You are instructed that if you believe beyond a reasonable doubt that the defendant had conspired with others to commit a felony, that the acts claimed by the state to have been done by the defendant in furtherance of said felony are not sufficient to constitute an attempt to commit a felony or the engaging in the commission of a felony.”

Section 1733 Compiled Statutes 1921, defines homicide as follows:

“Homicide is murder in the following cases:
“First. When perpetrated without authority of law and with a premeditated design to effect the death of the person killed, or of any other human being.
“Second. When perpetrated by any act imminently dangerous to others and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual.
“Third. When perpetrated without any design to effect death by a person engaged in the commission of any felony.”
“Fourth. (1923 Session Laws, Chapter 2.) Any person who sells, gives away, or otherwise furnishes any liquor, preparation or compound for beverage purposes, and which results in death, shall be guilty of murder.”

Reviewing the opening statement of the county attorney, it is clear he did not contend this homicide was perpetrated without authority of law, and with the premeditated design to effect the death of the deceased, or any other person, nor is it claimed by the state that the homicide was perpetrated by any act imminently dangerous to others and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of an individual.

It is not contended that the defendant sold, gave away, or otherwise furnished any liquor, preparation, or compound for beverage purposes, which resulted directly in the death of Waldo Floyd Becker. In the opening statement of the county attorney and in the presentation of the state’s testimony, the state based its entire case upon the fact that the said Mae Becker was engaged in the commission of a felony, in attempting to rob her husband, at the time the fatal shot was fired by one of her alleged accomplices.

The defendant in her argument contends that if the testimony of the state, which was admitted over the objection of the defendant, as to the conspiracy, be true, the parties at the time of the homicide was committed had not entered upon the commission of the felony named and were only preparing to do so, and that a clear distinction is drawn by the courts between the acts amounting to the commission of' a felony and the acts amounting to preparation for the commission of the felony. It is further contended by the defendant that the testimony of the state is insufficient to show that the defendant, and her alleged accomplices, Martin and Reimer, were engaged in the commission of a felony at the time the homicide in question occurred.

It is further contended by the defendant that all the testimony introduced by the state tending to show a plan to rob the defendant cannot amount to more than acts of preparation for the commission of said felony, and the defendant insists that the trial court erred in not directing a verdict in this case, as the state relied exclusively upon the conspiracy detailed by the witness Reimer as to the conspiracy, and that this defendant was actually engaged in the felony at the time her husband was killed. The defendant contends that the verdict of the jury is contrary to the laiv and the evidence.

16 Corpus Juris, p. 114, states as follows:

“No definite rule, applicable to all cases, can be laid down as to what constitutes an overt act or acts tending to accomplish a particular case. Each case must depend largely upon its particular facts and the inferences which the jury may reasonably draw therefrom. It is well settled, however, that something more than mere preparation or planning is essential. The. accused must take at least one step beyond preparation by doing something directly moving toward and bringing him nearer the crime he intends to commit. In other words, while the act need not be the last approximate act to the consummation of the offense intended to be perpetrated, it must be such as will apparently result, in the usual and natural course of events, if not hindered by extraneous causes, in the commission of the crime itself.”

In Ex parte Turner, 3 Okla. Cr. 168, 104 Pac. 1071, this court was confronted with the question of whether or not the evidence submitted made out a felonious charge against the prisoner, and at page 173 of 3 Okla. Cr. of this case, 104 Pac. 1073, the following language is used:

“In Hicks v. Com., 86 Va. 223, 9 S. E. 1024. 19 Am. St. Rep. 891, the Supreme Court of Virginia,, in considering an indictment charging the defendant with attempt to poison, with intent to kill, one A., by buying the poison and delivering it to one L., and soliciting her to administer it in coffee to A.,, say: ‘An attempt to commit a crime is compounded of two elements: (1) The intent to commit it; and (2) a direct ineffectual act done towards its commission.’ 2 Bishop, Crim. Proc. par. 71. Or, as Wharten defines it: ‘An attempt is an intended, apparent, unfinished crime.’
“Therefore the act must reach far enough towards the accomplishment of the desired result to amount to the commencement of the consummation. It must he not merely preparatory. In other words, while it need not he the last proximate act to the consummation of the offense attempted to be perpetrated, it must approach sufficiently near to it to stand either as the first or some subsequent step in a direct movement towards the commission of the offense after the preparations are made. McDade v. People, 29 Mich. 50; Bouv. Law Dict. ‘Attempt.’ ”

In this case the state’s strongest evidence, if the testimony of the accomplice Carl Reimer is to be believed, only shows acts of preparation consisting of devising or arranging the means or measures to commit the offense intended, namely, the robbery of Waldo Floyd Becker. The record does not reveal any evidence tending to show that this defendant actually was engaged in the commission of robbery, or any other felony, at the time the shooting is alleged to have occurred. The record discloses that the deceased had been drinking home-brew, as it was his custom to do daily during the evening meal. This alone would not amount to an attempt on the part of the defendant to commit felony when there was no evidence that the deceased was urged to drink. This question has been considered by many courts. The general rule is that acts of the party must proceed beyond mere preparation before that party is guilty of an offense of attempt to commit a felony, and have construed acts of defendants as mere acts of the defendant preparatory of an attempt to rob. Cornwell v. Fraternal Acc. Association of America, 6 N. D. 201, 69 N. W. 191, 40 L. R. A. 437, 66 Am. St. Rep. 601; Ex parte Floyd, 7 Cal. App. 588, 95 Pac. 175; Commonwealth v. Eagan, 190 Pa. 10, 42 A. 374; State of Vt. v. John Hurley, 79 Vt. 28, 64 A. 78, 6 L. R. A. (N. S.) 804, 118 Am. St. Rep. 934; Groves v. State of Ga., 116 Ga. 516, 42 S. E. 755, 59 L. R. A. 598.

In Cole v. State, 14 Okla. Cr. 18, 166 Pac. 1115, L. R. A. 1918A, 94, this court distinguished between attempt and mere preparation or solicitation in the case in which the defendant was charged with attempting to commit adultery. The first paragraph of the syllabus is as follows :

“Mere solicitation to commit adultery cannot be prosecuted under the law as an attempt to commit adultery.”

And in said case the court quotes with approval from the opinion in Ex parte Turner, supra.

In State v. Thomason, 23 Okla. Cr. 104, 212 Pac. 1026, this court, in the third paragraph of the syllabus by the editorial staff, said:

“An ‘overt act/ as an element of an attempt to commit a crime, must be something done that directly moves toward the crime, and brings the accused nearer to its commission than mere acts of preparation or of planning, and will apparently result, in the usual and natural course of events, if not hindered by extraneous causes, in the commission of the crime itself.”

In this case the conspiracy agreed to be committed, if true, between the defendant, Reimer, and Martin, was not such a conspiracy as to require the use of force or violence in its commission, nor was it such as might result in the unlawful taking of human life. We do not believe the testimony is sufficient to show that the act of killing in this case was within the scope of the conspiracy testified to by Reimer and such an act as would make this defendant liable for the act of Martin in shooting the deceased, unless the state should produce some evidence sufficient to convince the jury beyond a reasonable doubt that this defendant aided and abetted Martin in his action independent of the proof of the conspiracy itself. This defendant may be guilty of the commission of either murder or manslaughter in the shooting and killing of her husband, either by herself or by Martin, as disclosed by the circumstantial evidence and other evidence in this case, but the question of her guilt should be based on' a different theory than the theory of conspiracy submitted to the jury in the trial of this case. This killing may have been the result of the shooting by the defendant while engaged in a drunken brawl, or it may have been the result of the shooting of Becker by Martin, who rushed to the aid of Mrs. Becker when he thought she was being attacked by her husband, and in danger of losing her life or receiving great bodily harm. We believe that under the evidence in this case the question of the guilt of Mrs. Becker of the murder should have been submitted to the jury as well as the question of manslaughter. We cannot see wherein this killing under the proof in this case could be said to be within the contemplated conspiracy of stealing from the person of the deceased his money without the use of force or violence.

We hold the court erred in its instructions to' ,the jury, in restricting the jury to the guilt of the defendant of murder. Under the evidence in this case the guilt of the defendant of murder or manslaughter should have been submitted to the jury.

It is further urged by the defendant that the court erred in refusing to give the requested instruction to the jury, that under section 2701, C. O. S. 1921, a conviction-could not be had upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of- the offense, and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. The witness Carl Reimer, if there is any truth in his statements, was an accomplice in the planning and preparing to get the deceased out to the dance in Osage county, some three or four miles from the home of the deceased, and, it being true that the witness Reimer was an accomplice, it was necessary that the evidence given by him of the conspiracy should be corroborated by other testimony showing the conspiracy agreed to, and an effort to carry it out independently of the fact that the deceased was killed.

An examination of the record shows there were five other witnesses in this case; R. B. Brown, who was a police officer, merely shows the commission of the offense; Dr. Nucidos, that death resulted from gunshot wounds; Sam W. Tulk reveals a statement made by the defendant following the shooting;—neither of which tends to corroborate the testimony of Carl Reimer. Viva Masemore testified as to domestic trouble in the Becker family; her testimony in no way tends to corroborate Reimer. C. E. Barr, the desk officer, made no statement tending to corroborate the testimony of Carl Reimer.

In Jones v. State, 14 Okla. Cr. 217, 169 Pac. 1133, in the first paragraph of the syllabus, this court said:

“The uncorroborated statement of an accomplice which tends to connect another with the commission of a ‘ crime is insufficient to support a judgment of conviction.”

This court has reaffirmed this doctrine in many cases since the Jones Case. Jolliffee v. State, 21 Okla. Cr. 278, 207 Pac. 454; McKinney v. State, 20 Okla., Cr. 134, 201 Pac. 673.

There is no testimony whatever to corroborate Carl Reimer, and the question of corroboration is a question for the court and not for the jury. This court in Jolliffee v. State, supra, in third paragraph of the syllabus said: “Where it is admitted that, if the defendant is culpably implicated in the theft at all, the witness was an accomplice, the question of whether he was an accomplice is a question of law for the court, and not a question of fact for the jury, and the jury should be so instructed.”

We hold that under the facts in this case, and the law as applied to the facts, the court erred in not advising the jury as to the question of law that the witness Carl Reimer was an accomplice, and that the court erred in restricting Ms instructions on the question of proven conspiracy, and in not submitting the question of murder and manslaughter, on the circumstantial evidence contained in the record, to the jury.

For the reasons herein stated the case is reversed and remanded, with directions to grant a new trial and proceed in accordance with this opinion.

EDWARDS, P. J., and CHAPPELL, J., concur.


source: Caselaw Access Project

author: CHAPPELL, J.

license: Public Domain

text:
    MARK CARMICKLE v. STATE.
    No. A-6891.
    Opinion Filed Nov. 23, 1929.
    Rehearing Denied Dec. 21, 1929.
    (282 Pac. 1113.)
    F. W. Church, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter - called defendant, was prosecuted in the county court of Ottawa county upon information charging the defendant, Mark Carmickle, with the crime of imputing unchastity to a female in the manner and form as follows:

“That the said Mark Carmickle then and there being did then and there, wilfully, unlawfully, falsely, maliciously and wantonly, impute to Mrs. Florence E. Shaw, a female, a want of chastity by then and there in the Chamber of Commerce office in the City of Pitcher stating orally in the presence and hearing of Frank Hills, Dr. E. Albert Aisenstadt, H. G. Knox, J. B. Lucas, Jr., O. E. Monroe, D. W. Brashear, Eobert Taylor, J. H. Klinefelter, M. L. Crowe, Floyd Simmons, and M. C. Connors, as follows: to-wit: ‘That Mrs. Florence E. Shaw was a Crook and a Bad woman,’ then and there meaning that the said Mrs. Florence E. Shaw was unchaste contrary to the form of the Statutes in such case made and provided and against the peace and dignity of the State of Oklahoma.”

The evidence of the state was that a community fund had been raised in the town of Picher for the aid of the needy; that the defendant had objected to any part of such fund being set aside for the use of the Juvenile Home in Ottawa county; that, the board of directors of the Chamber of Commerce being in session, the' defendant .was sent for and asked to give his reasons why he objected to the use of such funds for the Juvenile Home; that defendant answered that Mrs. Florence Shaw, the superintendent, was a bad woman and a crook. One witness testified that he made the statement “that Mrs. Shaw was a bad woman and that she had been run out of Baxter and was forced to leave Shawnee.” The defendant testi fled that Mrs. Shaw had been excluded from the Salvation Army; that she had collected furniture and funds for the Salvation Army and converted the same for her own use; that what he meant by what he said was that she was a dishonest woman; and that his statements had no reference to her chastity.

The defendant was prosecuted under section 1808, C. O. S. 1921, which reads as follows:

“If any person shall orally or otherwise, falsely and maliciously or falsely and wantonly impute to any female, married or unmarried, a want of chastity, he shall be deemed guilty of slander, and upon conviction shall be fined not less than twenty-five dollars nor more than five hundred dollars, or by imprisonment in the county jail not less than thirty days nor more than ninety days, or by both such fine and imprisonment.”

Section 1809, C. O. S. 1921, provides:

“In any prosecution under the preceding section it shall not be necessary for the state to show that such imputation was false, but the defendant may, in justification, show the truth of the imputation, and the general reputation for chastity of the female alleged.”

The state proceeded upon the theory that it was only necessary to show the statements made, and that the question of what the defendant meant by such statements Avas one of fact to be determined by the jury from a consideration of all the facts and circumstances shown by the evidence in the case. This court has repeatedly held that, where the evidence is conflicting and there is any competent evidence before the jury to support the verdict, a neAv trial will not be granted for insufficient evidence. Browning v. State, 31 Okla. Cr. 373, 239 Pac. 272; Wilson v. State, 32 Okla. Cr. 139, 240 Pac. 155; Shields v. State, 32 Okla. Cr. 344, 240 Pac. 661. The question of what ^meaning the defendant intended to convey by the language he used Avas properly submitted to the jury by appropriate Instructions by the court. The jury found this issue against the defendant. There is competent evidence in the record sufficient to support the verdict of the jury.

The defendant next contends that, even if the communication should be construed to have the meaning given to it by the state, yet such communication was a privileged one, and the defendant could not therefore be held accountable criminally for such statement. The defendant contends that the question of privilege was one of law and not of fact, and that it was the duty of the court to determine as a matter of law whether such communication was privileged.

In the case of Hubbard v. Cowling, 36 Okla. 603, 129 Pac. 714, 715, this court said :

“Defendant insists that the question of privilege as urged in his answer was one of law for the court, and not of fact for the jury, and complains of the instruction given by the court to the jury, which required the jury to determine that question as one of fact. This contention cannot be sustained, and the decisions are practically uniform in holding that, where the evidence is conflicting, it is the province of the court to instruct the jury as to what facts constitute a privileged communication, and leave it for the jury to determine whether or not those facts have been established.”

The court properly instructed the jury that the question of whether such communication was privileged was one of fact to be determined by them, and they were instructed that, if they found from all the facts and circumstances in the case that the communication was privileged, then it would be their duty to find the defendant not guilty. This instruction was as favorable to the defendant as he was entitled to under the law and facts in the case.

The information charging an offense and the evidence. being sufficient to support the same, the case is affirmed.

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


author: EDWARDS, P. J.

text:
    RED DAVIS v. STATE.
    No. A-6972.
    Opinion Filed Dec. 21, 1929.
    (283 Pac. 586.)
    Sigler & Jackson, for plaintiff in error.
    Edwin' Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Carter county of assault and battery, and was sentenced to serve a term of 30 days in the county jail, and to pay a fine of $100.

Defendant was charged by information with a felony, an assault with intent to kill as defined by section 1756, Comp. St. 1921. This statute includes lesser assaults, including assault and battery, a misdemeanor, as defined by sections 1760 and 1761, the punishment for which is fixed by section 1763, Comp. St. 1921. The judgment was entered January 28, 1928. The appeal was lodged in this court April IQ, 1928, more than 60 days after the judgment was rendered. Section 2808, Comp. St. 1921, is as follows :

“In misdemeanor cases the appeal must be taken within sixty days after the judgment is rendered: Provided, however, that the trial court or judge may, for good cause shown, extend the time in which such appeal may be taken not exceeding sixty days. In felony cases the appeal must be taken within six months after the judgment is rendered, and a transcript in both felony and misdemeanor cases must be filed as hereinafter directed.”

No order was made extending the time in which the appeal should be filed in this court. The state has filed a motion to dismiss the appeal, for the reason that it was not filed within the time fixed by the statute, or within an extension fixed by the trial court. This court does not acquire jurisdiction of an appeal not filed within the time fixed by the statute. Pinchback v. State, 14 Okla. Cr. 302, 170 Pac. 714; Richards v. State, 16 Okla. Cr. 162, 181 Pac. 520; Boatright v. State, 19 Okla. Cr. 97, 198 Pac. 106; Buxton v. State, 41 Okla. Cr. 376, 273 Pac. 372.

Defendant contends that, since the defendant was tried upon a charge of felony, and was convicted of the included misdemeanor, the charge determines the nature of the case, and that he may appeal within the time fixed by the latter part of section 2808, Comp. St. 1921, as in •felony cases; that is, within 6 months after the judgment is rendered. No case in point has been cited by the state, we have found none, and counsel for defendant state they have been unable to find any case sustaining their contention, but cite the case of Smith v. State, 105 Ark. 58, 150 S. W. 149, as being analogous.

Section 2805, Comp. St. 1921, provides that a defendant may appeal to this court from any judgment against him. He may not appeal prior to the rendering of the judgment. McLellen v. State, 2 Okla. Cr. 633, 103 Pac. 876; Stanton v. State, 23 Okla. Cr. 193, 213 Pac. 914, and authorities cited.

Could it have been the legislative intent that, where an accused is convicted in a district court of a misdemeanor as an included offense in a felony charge, he shall have 6 months to appeal therefrom, but, if he should have been convicted in the county court of the same offense where the original charge is of a misdemeanor, that he shall have 60 days for appeal or on extensions of time by the trial court not to exceed 120 days. We think not. The conviction is for a misdemeanor. The appeal, being from the judgment of conviction for a misdemeanor, is an appeal in a misdemeanor case, and is governed by the first part of section 2808, supra. It follows that the appeal was not taken in time, and the motion to dismiss must be sustained.

The appeal is dismissed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    EDMOND BURKES v. STATE.
    No. A-6974.
    Opinion Filed Dec. 21, 1929.
    (283 Pac. 587.)

      Wieck & Armstrong, 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 Kay county on a charge of having unlawful possession of 34 cases of beer, and his punishment fixed by the court at a fine of $150 and confinement in the county jail for a period of 90 days.

The defendant in his brief says that his chief contention is that the evidence of the state fails to disclose the alcoholic content of the liquid seized, and that the evidence of the state wholly fails to show that the contents of the bottles and cases found were capable of being used as a beverage. Dr. Richards, testifying for the state after qualifying as a chemist, said that he analyzed the samples of the beer delivered to him by the state, and that they contained 2% per cent, alcohol measured by volume.

Defendant relies on the case of Jerome v. State, 28 Okla. Cr. 131, 229 Pac. 527, and other cases of this court following that rule. Those cases are not applicable to the facts in this case for the reason that in the Jerome Case, supra, the charge was for the possession of a substitute or compound, while in the case at bar the charge is for the possession of beer.

The defendant next contends that the evidence was inadmissible for the reason that it was obtained by an unlawful search and seizure. The officers found the defendant with a truck unloading the cases of beer and arrested him, seizing 13 cases of beer. After arresting the defendant and taking him to the station with the 13 cases of beer seized, the officers returned to the premises of Buck Hunter, where they had originally found the defendant and with the consent of Hunter searched a building on the back end of Hunter’s place and there found 34 additional cases of beer. This court has frequently held that immunity from illegal search and seizure is a personal one and that the defendant cannot complain where the premises of a third person are searched. Hunter v. State, 43 Okla. Cr. 138, 277 Pac. 952; Vale v. State, 43 Okla. Cr. 158, 277 Pac. 608.

The defendant complains of other errors, but they are all without merit.

For the reasons stated the cause is affirmed.

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


author: DAVENPORT, J.

text:
    HOMER PADEN v. STATE.
    No. A-7019.
    Opinion Filed Dec. 21, 1929.
    (283 Pac. 588.)

      F. R. Burns, for plaintiff in error.
    J. Berry Ring, Atty. Gen., and Smith G. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted on a charge of transporting intoxicating liquor, and was sentenced to pay a fine of $50 and to be imprisoned in the county jail of Ottawa county for 30 days. From the judgment, the defendant has appealed.

Frank Parker, a witness for the state, testified in substance he was chief of police of the city of Miami, Ottawa county, Okla.; that on the 22d day of June, 1927, he saw the defendant Homer Paden coming along the street with a package under his arm. “I watched the defendant walk up the street and turn on different streets, and, after following the defendant some distance, told him to stop.” The defendant went around a house, and, as witness stated, started to run. The police officer had no warrant for the defendant’s arrest, or to search his person. Witness stated he could not tell what the defendant had in the package under his arm, and that when the defendant refused to stop he pursued him and arrested him. Witness Parker was the only witness who testified, and he claims that after he arrested the defendant he found a package containing whisky in a fruit jar under a porch. Only one witness testified, the substance of the testimony being set forthe herein.

The police officer admits that, so far as he could see, the defendant was not committing any offense; he did not know what was in the package under defendant’s arm, and when he made the arrest he had no knowledge as to the contents of the package; and there is no competent testimony to prove that the witness found the package the defendant was carrying at the time he began to pursue him. We hold the arrest of the defendant in this case was without authority of law. There being no competent testimony to support the conviction, the case is reversed and remanded, with directions to dismiss.

EDWARDS, P. J., and CHAPPELL, J., concur.


author: PER CURIAM.

text:
    J. E. ANDERSON v. STATE.
    No. A-7024.
    Opinion Filed Dec. 21, 1929.
    (283 Pac. 588.)
    O. H. Whitt and Frank Watson, for plaintiff in error.
    The Attorney General, 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 possession of intoxicating liquor, and his punishment fixed at a fine of $50 and confinement in the county jail for 30 days.

The defendant first contends that the affidavit upon which the search warrant was issued was insufficient to authorize the issuance of a warrant thereon. An examination of the affidavit discloses that it is based wholly on information and belief and contains no facts upon which isuch belief could be predicated.

The affidavit being insufficient, the search and seizure was illegal, and the evidence obtained by such search inadmissible. It was error for the trial court to overrule the defendant’s motion to suppress the evidence.

For the reasons stated the cause is reversed.


text:
    JOHN WARD v. STATE.
    No. A-6955.
    Opinion Filed Dec. 21, 1929.
    (283 Pac. 589.)
    L. A. Foster, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Woodward county on a charge of having possession of intoxicating liquor, and his punishment fixed at a fine of $250 and confinement in the county jail for a period of 90 days.

The defendant contends first that the affidavit for the search warrant was wholly insufficient to authorize the issuance of a warrant thereon. The affidavit reads as follows:

“The State of Oklahoma v. Certain Intoxicating Liquors.
“In re: Application for Search warrant to search buildings and other places on South %, or Lot 3, Block 12, Davis Addition, in East Woodward, in Woodward County, State of Oklahoma.
“Anna J. Bouquot of lawful age, being first duly sworn, on his oath states that on the 2nd day of December, 1927, and for a long time next prior thereto, that certain intoxicating' liquors, to-wit; whisky, beer, and wine is now and during all said time has been by a person or persons to affiant unknown, unlawfully kept for the purpose and with the intent of unlawfully selling, bartering, giving away and otherwise furnishing said intoxicating liquors in violation of the prohibitory liquor laws of the state of Oklahoma, in the dwelling house and in other buildings, structures and places on the * * * in Woodward county, in the State of Oklahoma; that the said residence is now and during all said time has been, a place of public resort; contrary to the form.of the Statute in such case made and provided and against the peace and dignity of the state of Oklahoma.
“Wherefore, affiant asks that a search warrant issue, directed to the sheriff of said county, authorizing, and directing said' sheriff to search the said described premises for said intoxicating liquors. Anna J. Bouquot. Subscribed and sworn to before me this 2d day of Dec. 1927.
“H. B. King, Co. Judge.”

This affidavit is insufficient for two reasons: First, because the affiant nowhere swears to the description of the premises to be searched; and, second, because the facts stated are insufficient to authorize the issuance of a search warrant thereon.

For the reasons stated, the cause is reversed.


text:
    E. M. GORDON v. STATE.
    No. A-7474.
    Opinion Filed Dec. 21, 1929.
    (283 Pac. 589.)
    E. Moore, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Coal county on a charge of transporting intoxicating liquor, and was sentenced to pay a fine of $100 and to serve 60 days in the county jail.

Judgment was rendered on March 23,' 1929; the appeal was lodged in this court July 20, more than 60 days from the date of the judgment. Extensions of time were made within which to prepare and serve case-made, but no extension of time within which to file the appeal in this court was ever made. It is settled by numerous decisions of this court that an order of the trial court extending the time in which to make and serve a case-made does not automatically extend the time to file the appeal.

Unless such order covers both the time in which to make and serve case-made and the time to file the appeal, as provided by section 2808, Comp. Stat. 1921, the time for filing appeal is not extended. Pinchback v. State, 14 Okla. Cr. 302, 170 Pac. 714; Richards v. State, 16 Okla. Cr. 162, 182 Pac. 520; Boatright v. State, 19 Okla. Cr. 97, 198 Pac. 106; Buxton v. State, 41 Okla. Cr. 376, 273 Pac. 372.

Tbe appeal not having been filed within the time fixed by law nor the extension of time made by the court, this court does not acquire jurisdiction.

The attempted appeal is dismissed.


text:
    OP. JOHNSON et al. v. STATE.
    No. A-6951.
    Opinion Filed Dec. 21, 1929.
    (283 Pac. 590.)
    C. H. Wyand, for plaintiffs in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Woodward county on a charge of setting up a still, and their punishment fixed at a fine of $200 and confinement in the county jail for 60 days for each of them.

The defendants set out numerous grounds of error, but it is only necessary for this court to consider one question for the purpose of determining the issues of the case. The facts in the case appear to be that the defendants were charged with this offense on the 20th day of November, 1927, and that within one week thereafter defendants employed Hon. E. W. Snoddy, who was a duly elected and qualified member of the Legislature of the state of Oklahoma, as their counsel in the case; that said cause was set for trial on the 15th day of December, 1927; and that at such time the Legislature of the state of Oklahoma was in session, and the said E. W. Snoddy was in attendance thereon as a member of such Legislature. On the 14th day of December, 1927, the defendants filed their duly verified motion for a continuance upon the ground of absence of their counsel in attendance upon his duties as a member of the Legislature, which was then in session. Attached to and forming part of the motion for the continuance was a telegram from E. W. Snoddy advising defendants and the court that because of his attendance upon the Legislature it would be impossible for him to be present and make the defense in the case. On the 15th day of November, 1927, the trial court overruled this motion for a continuance, and the defendants were forced to go to trial over their protest in the absence of their counsel. Each of the defendants assigned the overruling of this motion for a continuance as error and earnestly contend that a new trial should be granted on account of such error.

In determining whether or not the court erred in overruling the application for a continuance it is necessary that we determine the scope and application of section 583, C. O. S. 1921, the pertinent part of which reads:

“The court may, for good cause shown, continue an action at any stage of the proceedings upon terms as may be just; provided, that if a party or his attorney of record is serving as a member of the Legislature or the Senate, sitting as a court of impeachment, or within ten days after an adjournment of a session of the Legislature, such facts shall constitute cause for continuance, the refusal to grant which shall constitute error, and entitle such party to a new trial as a matter of right.”

Under the provisions of this section it is mandatory upon the court to grant a continuance when it was made to appear to the court by proper affidavit that defendants had employed Snoddy prior to the convening of the Legislature, and that at the time set for the trial of said cause the said Snoddy was in attendance upon' a session of the Legislature then being held at the place provided by law for the holding of the sessions of the Legislature. The affidavit for the continuance containing all the necessary allegations showing the employment of Snoddy and his absence in attendance upon a session of the Legislature, it was reversible error for the trial court to overrule such application.

There is a distinction between the case at bar and the case of Holloway v. State, 37 Okla. Cr. 24, 255 Pac. 1022, and Otey v. State, 39 Okla. Cr. 61, 263 Pac. 155, in this: That in those cases the defendant had other counsel and did not employ a member of the Legislature as his counsel until after the Legislature had convened and the case had been set for trial.

In the case of Holloway v. State, supra, this court said:

“Where, prior to the convening of a session of the Legislature, a prosecution is pending against a defendant, and he has an attorney of record, his employment of a member of the Legislature as his attorney during the session of the Legislature does not entitle him, as a matter of right, to a continuance during the session of the Legislature.”

This rule is followed in the Otey Case, supra. But the facts appearing in the record in the case at bar are exactly opposite to the facts in the Holloway and Otey Cases, supra. Here the defendants employed their counsel almost immediately after their arrest, and the Legislature was in session at the time the case was called for trial, and the defendants did make a duly verified showing that counsel actually was in attendance upon a session of the Legislature at the time of the trial.

In the case of Holloway v. State, supra, in an opinion by Judge Edwards construing section 583, C. O. S. 1921, this court said:

“The purpose of this statute was, no doubt, to encourage members of the bar to become candidates for the lawmaking body of the state, and to protect a defendant whose attorney, presumably familiar with his case, could not attend his trial by reason of official duty, and to protect members in their business while serving the state in this capacity by preventing trials of cases where they are attorneys of record during the session of the Legislature and for ten days thereafter; that during this time they should not be disturbed in their duties as lawmakers. The privilege of a continuance as a matter of right applies only to a defendant whose attorney of record is a member of the Legislature. A member of the Legislature, during a session of the Legislature, also has the right to contract for any new business presented to him, and, if such business arises during a session of the Legislature, and he is employed, he would then be entitled to the benefits conferred by this statute. But, where an accused against whom a prosecution is pending prior to the convening of the Legislature, and who prior to such time has employed counsel' as his attorney of record, he may not during a legislative session, by employing a member of the Legislature, procure a continuance on that ground as a matter of right. To give the statute the construction here contended for would put it in the power of every defendant at his pleasure to continue his case during a session of the Legislature. This we think is contrary to the spirit and meaning of the act in question.’*

Upon the facts presented in this case which are undisputed by the state, defendants’ application would entitle them to a continuance as a matter of law, and it was reversible error for the trial court to refuse such continuance. The defendants raise other questions, but it is unnecessary to pass upon them at this time. For the reasons stated the cause is reversed and remanded, with directions to proceed with the trial of the case in accordance with this opinion.

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


text:
    ED ESLICK et al. v. STATE.
    No. A-6827.
    Opinion Filed Nov. 16, 1929.
    Rehearing Denied Dec. 21, 1929.
    (283 Pac. 578.)

      Robert H. Warren, for plaintiffs in error.
    Edwin Dabney, Atty. Gen., for the State...
   CHAPPELL, J.

Ed Eslick and Paul Graham were tried in the superior court of Pottawatomie county charged with maintaining and operating a liquor nuisance. They were found guilty by a jury, and this plaintiff in error, Ed Eslick, hereinafter called defendant, was sentenced to serve 60 days in jail and pay a fine of $250. The defendant Ed Eslick appeals from said judgment and sentence.

The defendant first complains that the evidence is insufficient to support the verdict of the jury. The evidence of the state was that people congregated at this place; that it had the reputation of being a place where intoxicating liquors were kept and sold; that one room contained a bar, and that the defendant Eslick was behind the bar and defendant Graham in a room immediately back of the bar at the time of the raid. An officer went into the back room to arrest Graham, and Graham upset a pitcher sitting on the stove, which pitcher contained from a quart to a half gallon of whisky. Small whisky glasses were found in this back room together with water glasses. There was a crowd of men in the front room about the bar, and the officers smelled whisky on these men.

To maintain the action, the state must prove either sales of liquor prior to the raid or finding of liquor on the premises, and must prove that people congregated on such premises for the purpose of drinking or must- prove the reputation of the place as being a place where liquors are kept, stored, sold, or given away. The proof in this case is sufficient to support the verdict of the jury.

The defendant next complains that the court erred in overruling the application of the defendant, Paul Graham, for a continuance. Since the defendant Graham did not appeal, the defendant Eslick is in no position to complain of the ruling of the court upon the application of the defendant Graham.

The affidavit and search warrant being sufficient to authorize the search, and the evidence being sufficient to support the verdict of the jury, the cause is affirmed.

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


text:
    O. C. SMITH et al. v. STATE.
    No. A-6822.
    Opinion Filed Nov. 30, 1929.
    Rehearing Denied Dec. 21, 1929.
    (283 Pac. 579.)

      Jess L. Ballard and Richard L. Wheatley, for plaintiffs in error.
    Edwin Dabney, Atty. Gen., and Smith O. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiffs in error, hereinafter called defendants, were jointly charged, tried and convicted in the district court of Ottawa county of the crime of forgery, and each sentenced to serve a term of four years’ imprisonment in the state penitentiary.

The evidence of the state tends to show that the crime charged was thoroughly planned before it was executed, and that it was finally consummated step by step as planned, and that each step taken toward the commission of the offense was taken Avith the view of interposing the very defense that Avas made in the trial of the case. That there was a crime committed is not denied. That these Avere lending active aid and comfort to the central figure in its commission during various steps of its commission is not disputed. The only question of fact so far as these defendants are concerned is whether or not this evidence, with the inferences properly to be drawn therefrom, is sufficient in law to rest the verdict and judgment on. The crime charged involves the forgery of a note and mortgage in order to procure a loan on real estate. The transaction forming the basis of the crime was a part of the business in Avhich these defendants were engaged and with which they were familiar. The defendant John Tynon was a Cherokee, born and reared in Delaware county, a farmer, real estate and mortgage agent, who lived on his allotment next to that of Jennie V. Gunter, on which the fraudulent mortgage was given, and who had known the Gunters all his life.

The defendant O. C. Smith likewise was a Cherokee Indian, born and reared in Delaware county, an acquaintance of the Gunter family, but who had not resided in Delaware county for several years. For several months prior to the commission of the crime charged this defendant had been a traveling agent for a Rio Grande Yalley land company which had its principal office in Kansas City, Mo. Smith’s territory of operation was Northeast Oklahoma, including Delaware county.

The state proved that on October 28, 1925, these defendants, together with a woman about 30 years of age, who claimed to be Jennie V. Gunter, appeared at the home of J. M. Fuser near Afton, Okla., and notified him that the woman wanted to secure a loan on her land in Delaware county, and Tynon introduced the woman to Fuser as Jennie Y. Gunter. Defendant Tynon accompanied Fuser to inspect the land. Fuser agreed to make a loan of $1,100. Both defendants accompanied the woman who claimed to be Jennie V. Gunter to the town of Jay, where they had the mortgage recorded and the abstract brought down to date. Both defendants then brought the woman back to Fuser, who paid the woman $94 in cash and give her a draft for $1,000 for the balance of the loan. Both defendants then accompanied, the woman to Tulsa, where she cashed the draft and disappeared. Defendant Tynon admits that the woman give him $30, but defendant Smith denies that he received any part of this bogus loan.

Defendants contend that they met the Gunter woman by accident in a hotel in Miami and heard her say she wanted to get a loan on her land, and they volunteered to help her. From the time they first accidently met her until the time the draft was cashed in Tulsa, these defendants were her inseparable companions. The defendants contend that this evidence was insufficient to justify the verdict of the jury.

None but a master mind could have conceived this crime, and none but those familiar with the real estate business and with the affairs of the Gunter family could have executed it. All the facts and circumstances in the case point conclusively to the guilt of the defendants. Thi$ court never disturbs a verdict of the jury where there is any competent evidence to support the verdict. Surrell et al. v. State, 43 Okla. Cr. 97, 277 Pac. 282; Richerson v. State, 43 Okla. Cr. 393, 278 Pac. 356; Adams v. State, 43 Okla. Cr. 179, 277 Pac. 688.

The defendants next contend that the trial court erred in its refusal and failure to give to the jury the defendants’ requested instructions numbered 1, 3, 4, 5, 6, and 7. Under section 2687, subd. 5, O. O. S. 1921, and the decisions cited in support thereof, it is clear that the instructions must be settled before they are read, and any special requests must be reduced to writing and offered to the trial court before the instructions are given. Boutcher v. State, 4 Okla. Cr. 585, 112 Pac. 762; Lumpkin v. State, 5 Okla. Cr. 488, 115 Pac. 478; Russell v. State, 17 Okla. Cr. 164, 194 Pac. 242.

It appears from the case-made that the court read his instructions to the jury, including one of the special instructions requested by the defendants, and that thereupon the following proceedings occurred:

“By the Court: You may now take such exceptions to the instructions of the court as you may desire.
“Mr. Commons: The state has no exceptions.
“Mr. Ballard: The defendants have no exceptions.
“By the Court: Let the record so show.”

The failure of defendants’ counsel to follow the requirements of the statute by making such written requests seasonably and by failure to except to the instructions as given by the court was a waiver on their part not only of the giving of any special instructions, but was a waiver of any objections to the instructions as given by the court.

A reading of the evidence offered in the case leaves no doubt in the mind of the court of the guilt of both the defendants.

The errors of law being without merit, the cause is affirmed.

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


text:
    BEN JEWELL v. STATE.
    No. A-6904.
    Opinion Filed Nov. 30, 1929.
    Rehearing Denied Dec. 21, 1929.
    (283 Pac. 256.)
    M. F. Hudson, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Me-Curtain county on a charge of having unlawful possession of a still capable of being used for the manufacture of intoxicating liquors, and was sentenced to pay a fine of $50 and be confined in the county jail for a period of 30 days.

This prosecution was had under section 2, c. 42, Sess. Laws, Sp. Sess., 1923-24, which act covers several different offenses, one of which is unlawful possession of a still. The charging part of the information is:

“Defendant then and there being, did then and there, unlawfully, willfully, maliciously, have in his possession a still, said still consisting of a thump keg, kettle and condenser, said device being then and there capable of being used in the manufacture and distillation of whisky, without first having registered said still with the county clerk of McCurtain county, Oklahoma.”

The defendant first complains that the evidence is insufficient to sustain the verdict of the jury. The evidence of the state was that the officers followed a path leading from the house of defendant out into the woods, where they found several barrels of beer and a still, tom up and scattered around in the woods near a barrel where whisky had been made. We found the boiler and part of the worm, a thump keg, kettle, and condenser, and that the equipment was capable of being, used for the manufacture of whisky. This evidence was sufficient to support the verdict of the jury.

The defendant next complains that the trial court erred in permitting evidence to go to the jury with reference to articles found in defendant’s home. The sheriff testified that, after they had followed the path from the defendant’s house to the still, they went back to the house, and the sheriff went to get a drink of water. The sheriff told the defendant he was not searching the house.

“He asked me if I had a search warrant and I told him I didn’t have one but I would get one. I told him I was looking for whisky and he said go ahead and search! the house and that searching the house I found 6 one hundred pound sacks of sugar and an. empty keg that had had whisky in it.”

When the sheriff advised the defendant that he had no search warrant and was not searching his house, and the defendant told him to go ahead and search, he thereby waived his constitutional immunity from search without a warrant. Bayne v. State, 42 Okla. Cr. 81, 274 Pac. 694; Fromcke v. State, 43 Okla. Cr. 309, 278 Pac. 409.

. The fact that the sugar and empty keg were found at the defendant’s home and the further fact that a path leading from his home to the still were circumstances to be considered by the jury in determining the question of the ownership of the still and the purpose for which it was kept, and were therefore admissible.

The defendant next complains that the court erred in its instructions to the jury. The instructions as a whole fairly state the law as applicable to the facts in the case, and that is all that is required. Guerin v. State, 43 Okla. Cr. 172, 277 Pac. 601; Reynolds v. State, 43 Okla. Cr. 353, 278 Pac. 358.

The errors complained of by the defendant not being fundamental, the cause is affirmed.

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


author: CHAPPELL, J. DAVENPORT, J.

text:
    PAT WHITFIELD v. STATE.
    No. A-6833.
    Opinion Filed Nov. 23, 1929.
    Rehearing Denied Dec. 21, 1929.
    (283 Pac. 266.)
    Sigler & Jackson, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Bryan county, upon a change of venue from Carter county, of the crime of assault with intent to kill, and his punishment fixed at imprisonment in the state penitentiary for a period of three years.

The evidence offered by the state was that J. M. Lanfordj the complaining witness, was on the streets of the city of Ardmore on his way* to his office, located in the Masonic building, when he was assaulted by the defendant, who struck him several blows. Lanford had some books, papers, and letters in his hands which he attempted to put in his pockets, but later dropped on the sidewalk and struck at the defendant. The defendant then started back and drew a pistol and made a motion as if to shoot Lanford, whereupon one Dunn, who was a deputy sheriff and sitting in a car near the scene of the difficulty, jumped out of the car and after some resistance took the pistol away from the defendant. The defendant then ran back to his car which Dunn had been sitting in and got another pistol which Dunn took away from him. In the meantime Lanford had gone around the car and placed the car between himself and the defendant. Dunn arrested the defendant and took him away from the scene of the difficulty. Immediately after this Cecil Crosby, another officer, at his request, searched Lanford and found no weapon upon him. The defendant contended that he only dmv his pistol in self-defense when he thought Lanford was reaching for his automatic, and also claimed that he demanded that the officers search Lanford and take off of him an automatic, which defendant thought Lanford had on his person.

The defendant first contends that he could not be convicted on the testimony for any crime greater than that of simple assault. Section 1764, C. O. S. 1921, provides as follows:

“Any person who, with intent to do bodily harm, and without justifiable or excusable cause commits any assault upon the person of another with any sharp or dangerous weapon, or who, without such cause, shoots or attempts to shoot at another, with any kind of firearms or airgun, or other means whatever, with intent to injure any person, although without intent to kill such person or to commit any felony, is punishable by imprisonment in the penitentiary not exceeding five years, or by imprisonment in a county jail not exceeding one year.”

In the case of Campbell v. State, 14 Okla. Cr. 319, 170 Pac. 915, in paragraph 1 of the syllabus, this court said:

“On an information based on section 2336, Rev. Laws 1910, charging the defendant with the offense of assault with intent to kill by shooting, he may properly be convicted of the offense defined by section 2344, of assault with a dangerous weapon with intent to injure any person, although without intent to kill such person, and the court should submit the case to the jury for consideration upon every degree of assault which the evidence in any reasonable view of it suggests.”

The court properly instructed the jury that they might find the defendant guilty of an assault with intent to kill or of an assault with a dangerous weapon with intent to do bodily harm or of the offense of simple assault. The evidence in this case is sufficient to support the verdict of the jury, and there was no error in submitting the lower offense to the jury, as the offense for which he was found guilty is included in the offense charged in the information.

The defendant next complains that the court erred in instructing the jury upon the law of self-defense. Instruction No. 11 reads as follows:

“You are instructed if the defendant willingly engaged the prosecuting witness, J. M. Lanford, in a fist fight and provoked the difficulty and during the fight drew a loaded pistol for the purpose of protecting himself against the assaults of the witness Lanford, then under no circumstances would he be justified, even though the prosecuting witness may have during the course of the combat assaulted the defendant, because a person cannot unlawfully provoke a difficulty when armed with a deadly weapon believing that such difficulty may end favorably and commit an assault with intent to kill upon his adversary during the progress of the fight, and then plead self-defense.”

This court has repeatedly held that the law of self-defense is solely a law of necessity; that it does not imply the right of attack and could not avail the defendant if he were the aggressor or if the fatal difficulty was sought by him or provoked by him by a willful act of his own reasonably calculated to bring it about, or if he voluntarily or of his own free will entered into it, no matter how hard he was pressed or how great the danger became during the progress of the difficulty. Young v. State, 11 Okla. Cr. 22, 141 Pac. 285; Hawkins v. U. S., 3 Okla. Cr. 651, 108 Pac. 561; Moutry v. State, 9 Okla. Cr. 623, 132 Pac. 915; Larry v. State, 10 Okla. Cr. 340, 136 Pac. 596; Dodd v. State, 25 Okla. Cr. 263, 219 Pac. 952; Fanning v. State, 27 Okla. Cr. 27, 224 Pac. 359.

There is nothing in the evidence to indicate that the defendant withdrew or attempted to withdraw from the difficulty, but the evidence establishes the fact that after the first pistol had been taken from him he immediately procured a second one and started toward the complaining witness as if to continue the affray. The court in its instructions numbered 9, 10, and 11 fairly covered the defense of self-defense and the law applicable thereto, and these instructions as a whole were more favorable to the defendant than he was entitled to under the evidence in the ease.

Finally the defendant complains that the court erred in permitting the jury to separate after the cause was finally submitted to the jury. . Defendant’s attorneys freely admit that at the time the jury separated they were attorneys for defendant, and that they as attorneys and the defendant personally agreed with the court and with the county attorney that the jurors might separate for the night and begin their deliberation on the verdict the next morning. This question has been raised by an attorney for the defendant who was not in the case at the time of the trial. The question was raised for the first time in a supplemental motion for new trial.

This court has held: That the defendant may waive his constitutional right to trial by jury. Ex parte King, 42 Okla. Cr. 46, 274 Pac. 682. That a constitutional right may be waived, which is for the benefit of the accused, or, if it is in the nature of a privilege, this may be done either by express consent or implication, or by failure to claim and assert the right in seasonable time. White v. State, 23 Okla. Cr. 198, 214 Pac. 202.

The right to a preliminary examination is one which the defendant may waive. Ables v. State, 35 Okla. Cr. 26, 247 Pac. 423. The defendant may waive his right to have a copy of the indictment or information and does so when he announces ready for trial without demanding a copy. Stouse v. State, 6 Okla. Cr. 415, 119 Pac. 271; Franklin v. State, 9 Okla. Cr. 178, 131 Pac. 183.

Defendant may also waive his constitutional right to have the names of the state’s witnesses served upon him at least two days before the trial. Sutton v. State, 35 Okla. Cr. 263, 250 Pac. 930. A defendant in a criminal case may waive any right not inalienable given him either by the statute or the Constitution, where it can be relinquished without affecting the rights of others. Hill v. State, 9 Okla. Cr. 629, 132 Pac. 950.

The right to have the jury kept together is a right belonging both to the state and to the defendant, and, where both the state and the defendant consent to the separation of the jury after the final submission of the cause and before the verdict is returned, the defendant waives his right to have the jury kept together and will not be heard to complain in this court that his rights were prejudiced by such separation. Where the jury are permitted to separate after the final submission of the case upon consent of the state and the defendant, prejudice will not be presumed in favor of the defendant, and the burden will be upon him to show that the jury during such separation was guilty of misconduct to his prejudice.

No misconduct of the jury having been shown during such separation, the court did not err in overruling defendant’s supplemental motion for new trial.

For the reasons stated the cause is affirmed.

EDWARDS, P. J., concurs.

DAVENPORT, J.

(dissenting). In dissenting from the majority opinion of the court, I feel it is necessary to state briefly my reason for doing so. As shown by the majority opinion, the defendant was convicted of the crime of assault with intent to kill, and his punishment fixed at imprisonment in the state penitentiary for a term of three years.

The coui’t of its own motion gave instruction No. 11, which is as follows:

“You are instructed if the defendant willingly engaged the prosecuting witness, J. M. Lanford, in a fist fight and provoked the difficulty and during the fight drew a loaded pistol for the purpose of protecting himself against the assaults of the witness Lanford, then under no circumstances would he be justified, even though the prosecuting witness may have during the course of the combat assaulted the defendant, because a person cannot unlawfully provoke a difficulty when armed with a deadly weapon believing that such difficulty may end favorably and commit an assault with intent to kill upon his adversary during the progress of the fight, and then plead self-defense.”

It will be seen from the instruction given that the court did not tell the jury, if it believed from the evidence beyond a reasonable doubt the defendant willingly engaged in a fist fight with the prosecuting witness and provoked the difficulty, and then during the fight drew a loaded pistol for the purpose of protecting himself, then under such circumstances the defendant would not be justified in pleading self-defense. On the contrary, the court told the jury, if it believed the defendant willingly engaged the prosecuting witness in a fist fight and provoked the difficulty, under no circumstances would he be justified, even though the prosecuting witness had, during the course of the combat, assaulted the defendant.

I contend there are circumstances which may arise in a difficulty where the defendant provoking the difficulty would be entitled to plead self-defense. I cannot agree with the majority opinion that the instruction herein quoted did not prejudice the rights of the defendant, and I insist the court should have instructed the jury that, if it believed beyond a reasonable doubt that the defendant was the aggressor and brought on the difficulty and entered into a fist fight, and during the fight drew a loaded pistol, he would not be entitled to plead self-defense, unless they further find the defendant in good faith abandoned the contest and did by word or act make the fact known to his adversary, then, if the adversary continued the combat, such adversary would be the aggressor, and therefore' the original aggressor would have the right of self-defense. Turnbull v. State, 8 Okla. Cr. 459, 128 Pac. 743; Moutry v. State, 9 Okla. Cr. 623, 132 Pac. 915; Fanning v. State, 27 Okla. Cr. 27, 224 Pac. 359.

In Larry y. State, 10 Okla. Cr. 340, 136 Pac. 596, in the second paragraph of the syllabus, this court said:

“While the killing is done in mutual combat, entered Into willingly, and in the knowledge of its liability to cause death to one or the other of the combatants, the defendant cannot justify * * * that it was committed in self-defense, and it will be manslaughter at least unless the defendant can prove that before the fatal shot was fired he had refused any further combat and had retreated as far as he could with safety, and that he killed his adversary of necessity to save his own life or his person from great bodily harm.”

I cannot concede that instruction No. 11, complained of by the defendant when taken in connection with the general instructions given by the court, was the proper instruction as applied to the facts in this case, or as a general instruction upon the question of the defendant’s right to invoke the plea of self-defense. As disclosed by the record there is a controversy as to what took place between the prosecuting witness and the defendant; the testimony of the defendant tending to show that after he and the defendant had struck some blows they were separated, and the prosecuting witness made an effort to draw something from his pocket, the defendant then drew his gun to prevent himself from receiving great bodily harm or his life being taken.

There was a conflict in the testimony, and I contend that instruction No. 11, given by the court, did not correctly state the law as to the right of the defendant to avail himself of the plea of self-defense, and was so strongly worded by the court as to deprive the defendant of that fair and impartial trial guaranteed by the Constitution and laws of the state of Oklahoma, and the Constitution of the United States.

I contend instruction No. 11, complained of by the defendant, in this case, did not correctly state the law applicable to the facts in this case and was calculated to mislead the jury, and was such an error as to entitle this defendant to a reversal.


text:
    C. N. THURMAN v. STATE.
    No. A-6953.
    Opinion Filed Dec. 21, 1929.
    Rehearing Denied Jan. 4, 1930.
    (283 Pac. 586.)
    Curran & Sturgis, 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 Garfield county on a charge of having possession of whisky with intent to sell the same, and his punishment fixed at a fine of $50 and confinement in the county jail for 30 days.

The defendant contends, first, that the evidence was insufficient to support the verdict of the jury. The state introduced four witnesses who testified: That they searched the premises of Mrs. Stuart in the 2200 block on West Randolph street in Enid. That the defendant roomed there. That they found four whisky glasses on the dining room table. That in the room occupied by the defendant they found a quart of whisky on the dresser and a copper funnel. In a clothes closet in the same room they found a two-gallon stone jug with about a gallon of whisky in it. In a cave in the yard they found two kegs containing about five gallons of wine; they also found forty-eight pint bottles of beer in the cave, and in the garage they found four gallons of whisky. The defendant came while the search was being made and admitted to the officers that the liquor found in his room and the beer found belonged to him, but denied that he knew anything about the other liquor. This evidence was sufficient to support the verdict of the jury.

The defendant complains of certain instructions given by the court. An examination of the record discloses that the instructions as a whole fairly state the law and were as favorable, to the defendant as the facts in the case would warrant. The evidence being sufficient to support the verdict, the errors of law complained of not being fundamental, the cause is affirmed.

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


text:
    JIM HUSBAND v. STATE.
    No. A-6855.
    Opinion Filed Oct. 26, 1929.
    Rehearing Denied Jan 4, 1930.
    (283 Pac. 584.)

      Bond & Bond, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Ásst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted in the district court of Stephens county, on a charge of stealing a hog, and was sentenced to imprisonment in the state penitentiary for seven years; from which judgment the defendant has appealed to this court.

The testimony on behalf of the state, in substance, shows that this defendant was living near a man by the name of J. C. Cannon; Mr. Cannon had taken from his place one sow weighing about 250 to 300 pounds, either on a Friday night or Saturday; when the sow was missed by the said J. C. Cannon, he started a search for her, finding her in a pen at Lindsay, Okla.; the defendant in this case had sold the sow to a Mr. R. D. Pratt of Lindsay.

Additional testimony was introduced by the state showing where the defendant lived, how far it was from defendant’s home to the prosecuting witness Cannon’s home; that the sow was taken without the knowledge or consent of J. C. Cannon, the owner; that the said defendant was paid $27.50 by the witness Pratt; that it was after banking hours, and the defendant took the check to some business house and cashed it.

The defendant testified in his own behalf, and stated a man came to him, who gave his name as Harman, and stated he had started to market with a truck load of hogs; that he had broken some part of the truck and had sent to town for repairs, and that he did not have room for one hog, and asked the defendant to take it to town for him and sell it, and advised the defendant to meet him at a certain store. The defendant admits he sold the hog to Mr. Pratt and cashed the check; that he met Mr. Harman and gave him the money less $5 that Harman was to pay him for taking the sow to town and selling her. A number of witnesses testified for the defendant, but the defendant did not know where Harman lived, nor was he able to account for how Mr. Harman found him and hired him to haul the sow to town and sell her.

The record shows that this is not the first offense for the defendant; he had been convicted and served a term in the penitentiary.

This is, in substance, all the testimony we deem necessary to set out in this opinion.

The defendant has assigned seven errors alleged to have been committed by the trial court. The second assignment is:

“That the court erred in overruling the motion of the defendant for a continuance on the ground of the absence of one John Tidwell.”

In support of his motion for a continuance, defendant introduced in evidence the subpoena for certain witnesses, among whom was the witness John Tidwell. This subpoena was issued on the 19th day of May, 1927, and commanded tbe witness to appear in court on the 20th day of June, 1927; on the 28th day of May, 1927, the return of the sheriff of Garvin county was filed, showing that the witness John Tidwell lived at Byars, in McClain county. The defendant had from the 28th day of May, 1927, until the 20th day of June, 1927, to have a subpoena directed to the sheriff of McClain county, to be served on the witness John Tidwell, who lived at Byars, in McClain county. The failure of the defendant to have the subpoena issued after the return of the officer was made showing where the witness resided, did not show due diligence on behalf of the defendant; therefore there was no abuse of discretion in denying the continuance. Hall v. State, 11 Okla. Cr. 57, 142 Pac. 1044.

This court has repeatedly held that motions for continuance are addressed to the sound discretion of the trial court, and that the court would not set aside a conviction because the trial court overruled the motion for continuance, unless it affirmatively appears that the court has abused its judicial discretion in overruling the motion for continuance. Pusley v. State, 22 Okla. Cr. 192, 210 Pac. 306; Grail v. State, 26 Okla. Cr. 132, 222 Pac. 701; Graham v. State, 28 Okla. Cr. 266, 230 Pac. 763.

This court has held that a continuance should never be granted for delay, but in order that justice may be done. Ross v. State, 34 Okla. Cr. 363, 246 Pac. 645.

The defendant also contends that the evidence in this case is insufficient to sustain a conviction. With this contention we cannot agree. There is a conflict in the testimony, but the testimony on behalf of the state, if believed by the jury, is sufficient to sustain a conviction. The defendant admits the possession of the stolen hog, and his explanation as to how he came into possession of this hog is very unsatisfactory and difficult to believe. The fact that the man from whom he claims to have received the hog to haul to market and sell for him, so far as any testimony shows, had never been seen in the country before the time defendant claims he hauled the hog to market and sold it, and had the check made payable to Harman, which check was cashed by this defendant, is a strong circumstance tending to show that the man Harman did not exist, and that this defendant, in giving this testimony he did, knew that Harman could not be found. In fact, it tends to show that no such man as Harman had anything to do with the hog.

The defendant has argued at length that the testimony in this case is insufficient to sustain a conviction, and has cited a number of authorities to sustain this contention. After a careful reading of the authorities, we hold they are not in point as applied to the facts in this case.

There are other errors assigned, but they are without merit.

In this case the information was sufficient to advise the defendant of the crime charged against him. The court properly instructed the jury as to the law. The defendant was accorded a fair and impartial trial. Finding no fundamental or prejudicial errors in the record, the judgment of the trial court is affirmed.

EDWARDS, P. J., and CHAPPELL, J. concur.


text:
    J. W. STALLINGS v. STATE.
    No. A-6387.
    Opinion Filed Dec. 21, 1929.
    Rehearing Denied Jan. 4, 1930.
    (283 Pac. 584.)
    A. T. Earley and Caleb Choate, for plaintiff in error.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Oklahoma county on a charge of maintaining and operating a public nuisance, and his punishment fixed at a fine of $200 and to be confined in the county jail for a period of 90 days.

A transcript of the proceedings had in the case was filed in this court on the 22d day of September, 1926. The defendant filed no brief in support of his petition in error. The transcript does not contain any of the evidence taken in the case. It appears from an examination of the record that all the proceedings were legal and regular, and that the errors complained of are without merit.

For the reasons stated the cause is affirmed.

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